Abstract
This chapter introduces the primary treatises whose concepts and categories provide the “lens” through which the subject-text will be analyzed: the Kitāb al-Qiyās al-Sharʿī of Abū al-Ḥusayn al-Baṣrī, the Maʿūna fi’l-Jadal of Abū Isḥāq al-Shīrāzī, and the Minhāj fī Tartīb al-Ḥijāj of Abū al-Walīd al-Bājī (Sect. 4.1). In subsequent sections, their key concepts and categories are reviewed, with brief expositions on the various modes and hierarchies of epistemic justification (Sect. 4.2), representative typologies of qiyās (Sect. 4.3), modes of question and response (Sect. 4.4), categories of objection and critique (Sect. 4.5), and procedural norms and proper comportment in debate (Sect. 4.6). The chapter concludes with an overview of parallels and divergences between full-system jadal-theory and Aristotle’s dialectical method in the Topics and Sophistical Elenchi, following the illustration of a new developmental schema for Islamic dialectical traditions, emphasizing common origins, parallel development, and continuous cross-germination (Sect. 4.7).
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- 1.
And not only in the heartlands, but in Andalusia, due to al-Bājī’s return to his homeland and subsequent 40 years of scholarship there.
- 2.
See the references at the end of this section for a list of editions. Notably, the Epitome on Dialectical Disputation (Mulakhkhaṣ fi’l-Jadal) of al-Shīrāzī has also survived, but—though edited by Muḥammad Yūsuf Ākhund Jān Niyāzī in his 1986 MA thesis (Umm al-Qura University)—it remains unprinted. Fortunately, al-ʿUmayrīnī makes frequent reference to a manuscript witness of the Mulakhkhaṣ found in the collection of the Great Mosque at Ṣanʿā’; he supplemented the Maʿūna from its passages wherever he deemed it lacking. I have, moreover, recently acquired the first volume of Niyāzī’s thesis, and will make frequent reference to it with regard to al-Shīrāzī’s exposition on qiyās.
- 3.
It must be acknowledged that attribution of the Kāfiya to al-Juwaynī has been contested by Daniel Gimaret. His argument (La doctrine d’al-Ashʿarī, p. 183, n. 2.) is brief, and may be presented in full: « Qui n’est probablement pas Ǧuwaynī, contrairement à ce qu’assure l’éditeur [Fawqiya Ḥusayn Maḥmūd]. J’en vois pour preuves—outre le fait que ce titre n’apparaît nullement dans les bibliographies de l’Imam—les deux définitions de naẓar (§44) et de ‘ilm (§64), totalement différentes de celles du Šāmil pour l’un (éd. Frank 4,5), de l’Iršād pour l’autre (7,4). Dans l’Iršād (7,6-7 et 11-14), Ǧuwaynī rejette explicitement la définition aš‘arienne du ‘ilm reprise dans la Kāfiya. Un autre indice dans le même sens me paraît être l’absence, dans la Kāfiya, de toute mention de Bāqillānī, si souvent cité tant dans le Šāmil que dans le Burhān. » On the whole, though Gimaret has certainly sustained the possibility of a different author through these indicants, I do not believe they amount to a probability. With regard to the absence of mention of the Kāfiya in bio-bibliographical works: this is no proof at all, especially when we consider that al-Juwaynī is supposed to have authored so many works that al-Subkī (in his Ṭabaqāt) proclaimed: “the abundance of his literary production could be explained only by a miracle” (cited in the EI 2, s.v. “al-Dj uwaynī”). The same applies for the absence of mention of al-Bāqillānī in the Kāfiya: it does not constitute, in my opinion, a pointer in either direction. And as for the differing definitions cited by Gimaret, I would note the following: (1) variant definitions are not proofs of different authorship, as we must allow that a scholar will rethink and reformulate his/her opinions over time (see Fischer, Historians’ Fallacies, pp. 199f., where the author discusses a variant of the “Idealist Fallacy,” concluding: “Surely many thinkers have been in consistent within their own limits… presumption of logical consistency is as unjustified as a presumption of the opposite”); (2) the Irshād and the Shāmil are theological works, while the Kāfiya is a work of distinctly juridical jadal, and we will soon see proofs that al-Juwaynī understood variant epistemological first principles for theology and law (acknowledging, inter alia, a difference between “rational causes” [ʿilal ʿaqliyya] and “legal causes” [ʿilal sharʿiyya]); (3) al-Juwaynī’s definition for “intellectual investigation” (al-naẓar) in his Waraqāt fī Uṣūl al-Fiqh (al-Qāsimī and al-Balkhī ed., p. 46)—“it is thinking about the condition of the object of investigation” (huwa al-fikr fī ḥāl al-manẓūr fīhi)—is in full consonance with the definition and arguments in the Kāfiya—indeed, in the Kāfiya the author argues against two opinions which seek to distinguish naẓar from “thinking” (fikr) (pp. 16–18, §§44–46); and (4) al-Juwaynī’s definition for “knowledge” (al-ʿilm) in his Waraqāt (op. cit.)—“cognition of the object of knowledge according to what it, in reality, is” (maʿrifat al-maʿlūm ʿalā mā huwa bihi fi’l-wāqiʿ)—is, again, in full consonance with his definition and arguments in the Kāfiya—in the latter, he in fact links ʿilm and “cognition” (maʿrifa) more than once in his arguments against opposing positions (pp. 25–7, §§64–5). With regard to points (3) and (4), Gimaret does not treat the author’s full discussions with their arguments; and, adding to these points the various inter-textual references in the Kāfiya (which, in the main, seem to point to al-Juwaynī’s Burhān), I stand by the editor of the Kāfiya (Maḥmūd) in attributing this work to al-Juwaynī.
- 4.
For this reason I have largely abandoned the Kāfiya in favour of my three primary treatises. The Kāfiya is referenced more frequently in my dissertation, though primarily in reviewing Miller’s observations and assessments. Notably, al-Juwaynī also composed a detailed Burhān fī Uṣūl al-Fiqh. Tāj al-Dīn al-Subkī (d.771/1369) apparently found it so difficult to work with that he gave it the appellation “Laghz al-Umma” (“Riddle of the Muslim Community;” see the entry on al-Juwaynī in the EI 2). If this renowned Shāfiʿī scholar found the Burhān inaccessible, then my own difficulties in navigating al-Juwaynī’s Kāfiya fi’l-Jadal may be thrown into a new light; Miller, too, appears to have concentrated his efforts in just a few of the more clearly organized pages of the Kāfiya.
- 5.
For these reasons, Ibn ʿAqīl has mostly been relegated to footnotes in the following discussions and analyses. A brief disclaimer: my primary reliance upon the three works of al-Baṣrī, al-Shīrāzī, and al-Bājī in no way suggests that those of al-Juwaynī, Ibn ʿAqīl, et al., are less important or inferior—they exhibit every quality of sophistication and erudition, and are fully deserving of detailed study.
- 6.
Known as al-Qaffāl al-Kabīr (d.336/947), he was a Shāfiʿī and student of Ibn Surayj.
- 7.
A full argument, drawing largely upon the anachronistic references noted by Muḥammad Akram al-Nadwī in his edition of the Uṣūl al-Shāshī, may be read in my dissertation (pt. 1, pp. 93–7). My reasoning there serves as part of my argument against Calder’s post-dating of the Umm corpus. In short, the text of the Uṣūl al-Shāshī contains unambiguous anachronisms providing clear indicants that it cannot be ascribed to Abū ʿAlī al-Shāshī (or at least not in its entirety). Calder’s arguments, on the other hand, rest on no such unambiguous bases—they rely upon textual features which are equivocal of interpretation and not at all self-evident. His arguments therefore produce no more than a possibility, whereas the anachronisms of the Uṣūl al-Shāshī (the equal of which are not found in the Umm) make its ascription to a later generation probable.
- 8.
See al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 26–39; al-Bājī, Minhāj, Turkī ed., pp. 15–33, §§19–63; Ibn ʿAqīl, K. al-Jadal, pp. 3–13, §§10–65. Al-Juwaynī’s approach varies significantly from that of al-Shīrāzī and his students, and appears to be based upon a variant organizing principle. He begins with a protracted discussion of definitions—beginning with the definition of “definition” (ḥadd) itself—for terms one is likely to encounter in discourse on legal theory and disputation (Kāfiya, pp. 1–73, §§4–176); the ordering principle is quite difficult to determine at times, and he even includes definitions for substantive legal categories (e.g., for ritual purity). He proceeds to an exposition on jadal and its types of dialectical questions, with yet more definitions (pp. 73–87, §§177–94), and eventually reaches the various means of deriving rulings (aḥkām). After this, discussions are wide ranging and interspersed with species of objection (iʿtirāḍ)—with special focus on qiyās-oriented dialectical moves. Although al-Shīrāzī (in his Mulakhkhaṣ, not his Maʿūna) and al-Bājī in his Minhāj both open with definitions and the dialectical questions, they are at once far more concise, clear, and orderly.
- 9.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 27–9. Only al-Shīrāzī’s categories, definitions, and procedural norms will be presented in this table, though many of the istidlāl-relevant concepts and terms playing a role in subsequent analyses are adequately explained in this manner. For the most part, his examples, additional explanations, and discourses on variant opinions are not provided here.
- 10.
Examples include (1) the injunction (amr) which may possibly bear obligation (ījāb) or recommendation (nadb), but is “more apparent” (aẓhar) as regards obligation; and (2) the proscription (nahy) which may possibly bear prohibition (taḥrīm) or reprehension (karāha) and abstention (tanzīh), but is “more apparent” as regards prohibition.
- 11.
Examples include such nouns as acquire a more technical legal meaning than that of their origins in common language, such as prayer (ṣalāt) and pilgrimage (ḥajj).
- 12.
The four alfāẓ-expressions of this category are listed as: (1) plural nouns; (2) definite singular nouns; (3) demonstrative pronouns; and (4) negative constructions with indefinite nouns.
- 13.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 29–33.
- 14.
Meaning, the Prophet’s utterance did not come about due to a particular incident (e.g., the petitioning of a Companion).
- 15.
Meaning, the Prophet’s utterance was in response to some external factor, and addresses it.
- 16.
al-Shīrāzī’s example is a qawl of the Prophet who, having been informed he had performed ablutions (wuḍū’) from a polluted well, said: “Water is pure (ṭahūr), nothing pollutes it.”
- 17.
The example is a qawl of the Prophet who, when a Bedouin confessed to daytime sexual intercourse during Ramaḍān, replied: “Manumit a slave.” Al-Shīrāzī explains: “And so the qawl of the Messenger becomes, along with the reason (sabab), like a single sentence: as though he said—upon him be peace—‘When you have sexual intercourse; manumit.’”
- 18.
By the phrase ʿalā ghayr wajh al-qurba, we understand such acts as have no moral or religious significance; the aim of the act was not “nearness to God” (qurba).
- 19.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 33–4.
- 20.
Examples include: “their ijmāʿ upon the allowance (jawāz) of commutation (bayʿ), partnership (mushāraka), speculative partnership (muḍāraba), etc.”
- 21.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 34. Al-Shīrāzī earlier points out (pp. 26–7) that al-Shāfiʿī added this to the uṣūl in his Old Doctrine (fi’l-qadīm). This is here confirmed.
- 22.
al-Shīrāzī notes: “One of our [Shāfiʿī] companions said: “[R] bases an argument upon it with a weak qiyās. But this is not correct.”
- 23.
al-Shīrāzī asks: “But is the general (ʿumūm) to be particularized by way of [the saying of a solitary Companion]? Regarding this there are two approaches.” He does not elaborate further here, but al-ʿUmayrīnī (p. 34, n. 5) fills in the gap from al-Shīrāzī’s Lumaʿ: “One of [the two approaches] is that [the general] is indeed particularized by way of [the saying of a solitary Companion]—because if it is advanced over correlational inference (qiyās), then particularization of the general (takhṣīṣ al-ʿumūm) is all the more appropriate (awlā). [Note this as an a fortiori argument employed in a problem of legal theory]. And the second [approach]: [The general] is not particularized by way of [the saying of a solitary Companion], because [the Companions] used to return to the general (ʿumūm) and abandon what they were doing.”
- 24.
Al-Shīrāzī begins by stating “the indicants of what is rationally understood [of the divinely-sanctioned source-cases] (adillat al-maʿqūl) are three,” and he then lists the second-tier categories of A Fortiori Signification of the Instruction (faḥwā al-khiṭāb), [Restrictive] Indicant of the Instruction (dalīl al-khiṭāb), and Intension-Property of the Instruction (maʿnā al-khiṭāb). As al-ʿUmayrīnī notes (p. 35, n. 1), however, al-Shīrāzī—in his Mulakhkhaṣ fi’l-Jadal—states that the adillat al-maʿqūl are four, and among them lists laḥn al-khiṭāb. This he defines as “the unspoken element (ḍamīr) without which the discourse (kalām) is not completed.” In other words, it refers to such a locution from which an element has been omitted, but which is arguably understood to include that element. A common example is when God says, in Q.12:82: «Ask the village (wa is’al al-qaryata),» meaning: “the folk of the village (ahl al-qarya)” (see al-Shīrāzī, al-Lumaʿ, Mustū ed., pp. 104–5, §114). As we shall see, al-Bājī treats laḥn al-khiṭāb as a category of maʿqūl al-aṣl.
- 25.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., p. 35. Note that al-Bājī also calls faḥwā al-khiṭāb by the following: “what is understood of the instruction” (mafhūm al-khiṭāb), and “self-evident appeal” (al-tanbīh); and that he says: “This is what al-Shāfiʿī calls ‘clearly-disclosed correlational inference’ (al-qiyās al-jalī)” (Minhāj, Turkī ed., p. 24, §45). Cf. Hallaq on a fortiori arguments in general, and al-qiyās al-jalī in particular (History, pp. 96–9, 102–3, 105).
- 26.
Meaning, the ruling for the greater is transferred to the lesser in the a maiore ad minus case; and from the lesser to the greater in the a minore ad maius case.
- 27.
al-Shīrāzī, Maʿūna, Turkī ed., pp. 138–9, §18. Al-ʿUmayrīnī’s diplomatic edition (p. 35) here suffers from a lacuna in the Gotha manuscript, observed and corrected in Turkī’s critical edition (p. 136, and n. 1 for §18).
- 28.
Examples include God’s decree, in Q.65:6: «And if they are pregnant, then pay maintenance (nafaqa) for them;» and the Prophet’s decree: «Regarding such as are pasturing (sā’ima) of the sheep/goats there is alms tax (zakāt).» As for the first, it “provides indication that there belongs no maintenance to the one who is not pregnant;” and as for the second, it provides indication that “there is no alms tax for other than the pasturing sheep/goat.” This matches well with al-Shīrāzī’s definition; God makes His ḥukm contingent upon the property (waṣf) of “pregnant,” and thus indicates that what goes beyond this (“not pregnant”) occasions the opposite ḥukm; and the Prophet makes his ḥukm contingent upon the property of “pasturing,” and thus indicates that what goes beyond this (“not pasturing”) occasions the opposite ḥukm. Importantly, al-Shīrāzī cites Abū al-ʿAbbās b. Surayj—a most important figure in the early systematization of both uṣūl al-fiqh and jadal—reporting his saying: “What goes beyond the mentioned thing (mā ʿadā al-madhkūr) does not provide indication for a ḥukm.” This sounds as though Ibn Surayj denied the argumentative conclusiveness of dalīl al-khiṭāb; and al-Shīrāzī makes his disagreement plain, saying: “And the madhhab-doctrine is the first” (i.e., al-Shīrāzī’s methodological norm is correct). However, when we read al-Shīrāzī’s citation of Ibn Surayj in the Lumaʿ, we find that Ibn Surayj denied the argumentative conclusiveness of dalīl al-khiṭāb only when the khiṭāb (instruction) does not include a “conditional expression” (lafẓ al-sharṭ) (Mustū ed., p. 106). It would appear from the examples in the Maʿūna that the first (“if they are pregnant, then pay maintenance”) would have enjoyed Ibn Surayj’s sanction, but not the second.
- 29.
al-Shīrāzī, Maʿūna, Turkī ed., pp. 139–40, §19. The various modes of qiyās will be explored fully in a following section.
- 30.
The verb is استدلّ. The most literal (yet still idiomatic) rendering of this important technical term would be “to draw forth an indicant (dalīl)”—i.e., with regard to the legal problem at hand, and in order to derive or further support a solution.
- 31.
Al-Shīrāzī’s example—along with al-Bājī’s explanation and examples—confirms that “special characteristics” (khaṣā’iṣ) can include, among other things, an established ḥukm shared by aṣl and farʿ. This indicates that the farʿ shares the ʿilla which occasions that ḥukm in the aṣl. Sānū’s definition of qiyās al-dalāla (Muʿjam, s.v. “قياس الدلالة”) underlines three categories of uniting element (jāmiʿ), all of which provide indication (hence: “dalāla”) that the farʿ shares the same ʿilla as the aṣl. First is when the uniting element is one of the properties inseparable from the ʿilla (waṣf lāzim min lawāzim al-ʿilla), e.g., the smell shared by grape-wine (khamr) and date-wine (nabīdh), providing indicant that date-wine shares the same ʿilla—namely, “it is an intoxicant.” Note that “smell” is not efficient in occasioning the ḥukm, even though it is inseparable from the ʿilla. Second is when the uniting element is one of the effects of the ʿilla (athar min āthār al-ʿilla); e.g., the effect of “he commits a sin” shared between killing with a blunt instrument and killing with a cutting instrument—this provides indication that these cases share the same ʿilla occasioning the ḥukm of retaliation (qiṣāṣ). Note once again that “he commits a sin” is not efficient in the ʿilla itself, but is merely one of its effects. Third is when the uniting element is one of the norms occasioned by the ʿilla (ḥukm min aḥkām al-ʿilla), e.g., the ḥukm of “blood-money (diya) is obliged (wājib) for it,” shared by both the cutting of one hand (aṣl) and the cutting of both hands (farʿ); this provides indication that the farʿ shares the same ʿilla occasioning the ḥukm of retaliation (qiṣāṣ) in the aṣl. In other words, in this third case the “special characteristic” (khaṣīṣa) is the ruling “blood-money is obliged for it;” and the fact that the branch-case (cutting both hands) shares this ruling with the source-case (cutting one hand) provides a dalīl-indicant that it also shares the branch-case’s (unidentified) ʿilla, which occasions the sought-after ruling obliging retaliation in the source-case, and thus—presumably—in the branch-case.
- 32.
As will be explained, al-Shīrāzī’s examples make clear that “parallels” (naẓā’ir, s. naẓīr) are a special category of rulings, with regard to certain subjects, which appear to be twinned in God’s Law. If we wish to determine whether ruling Y is obliged for subject B, we might reason: since, for subject A, whenever ruling X is obliged, ruling Y is also obliged, it is reasonable—knowing that X is obliged for subject B—that ruling Y should also be obliged for subject B.
- 33.
Meaning, by way of shared properties which may or may not be efficient, but—being shared—indicate a shared ʿilla. Al-Shīrāzī notes: “Among our [Shāfiʿī] companions are those who say: ‘It is a dalīl-indicant.’ And among them are those who say: ‘It is not a dalīl-indicant, but indeed something else may be given preponderance by means of it’ (yurajjaḥu bihi ghayruhu). And [this latter opinion] is the more correct (al-aṣaḥḥ).” As al-ʿUmayrīnī notes (p. 38, n. 3), al-Shīrāzī seems to have been more decisive elsewhere, claiming that qiyās al-shabah is not valid. Sānū (Muʿjam, s.v. “قياس الشبه”) defines qiyās al-shabah as follows: “The joining (ilḥāq) of a farʿ to an aṣl due to the abundance of its resemblance (li-kathrat shabahihi) to the aṣl in terms of properties (awṣāf), without believing that the properties by which the farʿ resembles the aṣl constitute the ʿilla for the ḥukm of the aṣl.”
- 34.
al-Shīrāzī, Maʿūna, Turkī ed., p. 141, §20.
- 35.
As we shall see, al-Bājī’s hierarchy of istidlāl treats additional categories current to the Mālikī madhhab—e.g., “the Consensus of the Medinese” (Ijmāʿ Ahl al-Madīna)—and problematizes other categories supported by his contemporaries and predecessors—including certain doctrines of his teacher, al-Shīrāzī.
- 36.
Acknowledging, of course, that the topoi are quite differently organized according to types of predicable.
- 37.
Minhāj, Turkī ed., pp. 7–9, §§1–7.
- 38.
Ibid., pp. 9–10, §§8–13.
- 39.
Ibid., pp. 10–14, §§14–18. Notably, these definitions are roughly grouped in the order we usually find them in uṣūl al-fiqh treatises. Epistemological terms are first (e.g., ḥadd, ʿilm, shakk, etc.), followed by hermeneutical terms for Kitāb and Sunna (e.g., naṣṣ, ẓāhir, naskh, etc.), then definitions of norms (wājib, jā’iz, fāsid, etc.), then ḥadīth transmission terms (tawātur, āḥād, mursal, etc.), then terms for ijmāʿ, qiyās, and various genera of iʿtirāḍ.
- 40.
Ibid., pp. 15–33, §§19–63.
- 41.
Al-Shīrāzī, in the opening section justifying his composing of the Maʿūna (al-ʿUmayrīnī ed., p. 26), describes his prior work, the Mulakhkhaṣ fi’l-Jadal, as a mabsūṭ. This is why he composed the Maʿūna, as a primer for beginners, and a review for initiates. We will note that it is a far more abbreviated work than the Minhāj, not just in terms of the contents of chapters, but in the absence of chapters themselves. The Maʿūna, for example, treats neither proper comportment (adab), nor definitions, nor dialectical questions, but plunges straight into the domains of istidlāl outlined above, before proceeding directly to the identically-ordered domains of objections (iʿtirāḍāt).
- 42.
For the most part, we will dispense with such definitions as have appeared in our outline of the Maʿūna, except where they differ from al-Shīrāzī’s. Al-Bājī’s examples, extended explanations, and reporting/refuting of variant opinions are also omitted from our outline, except where deemed necessary. Finally, a number of terms which have already appeared in the previous outline will not be translated here, but remain in transliteration.
- 43.
al-Bājī, Minhāj, Turkī ed., pp. 15–18, §§20–7.
- 44.
Al-Bājī provides no definition for mufaṣṣal—neither here, nor in his opening chapter on definitions. It is evident from his presentation, however, that mufaṣṣal is to be understood in contradistinction to “ambiguous” (mujmal). In other words, it is more or less synonymous with “explained” (mufassar), which he earlier defines (p. 12, §15) as: “Such as whose intended meaning (al-murād bihi) is understood from its lafẓ-expression, and does not require anything else for its explanation (bayān).” Moreover, the Ẓāhirī Ibn Ḥazm (d.456/1064), an Andalusian contemporary and frequent dialectical opponent of al-Bājī, provides a definition of mufaṣṣal in his Precision in the Authoritative Source-Materials of Rulings (Iḥkām fī Uṣūl al-Aḥkām) (Shākir ed., vol. 1, p. 48). It is: “Such as whose divisions (aqsām) are clarified (buyyinat); and it is, in original linguistic usage (aṣl al-lugha), such as part of which has been separated (furriqa) from another part—you say: I cut apart (faṣṣaltu) the garment, or the meat, etc.” As the passive participle of Form II faṣṣala, mufaṣṣal also bears the sense of “that which is exposited in detail.”
- 45.
Again, al-Bājī provides no definition for muḥtamal, but the meaning of “possibly bearing X” is easily inferred. That which may be classified as “univocal” (naṣṣ) does not “possibly bear” more than one interpretation, hence: “not possibly bearing” (ghayr muḥtamal). In contradistinction, that which is “apparent” (ẓāhir) or “general” (ʿāmm) may “possibly bear” more than one interpretation (hence: muḥtamal), but a primary meaning can be made to preponderate over others.
- 46.
Al-Bājī’s definition for ẓāhir in §15 (with fahm) differs slightly from his definition here in §22 (with ʿilm).
- 47.
Al-Bājī’s example, “excrement” (al-ghā’iṭ)—originally meaning “low ground used as a latrine” (see Lane, Lexicon, s.v. “غائط”)—makes clear that this category comprises words which acquired a different meaning through customary usage. He concludes: “and it is obliged that one link it with [the acquired meaning], unless the dalīl-indicant provides indication that something else is intended by it.”
- 48.
Examples are: “believers” (al-mu’minīn), “Muslims” (al-Muslimīn), etc.
- 49.
Examples are: “animal” (al-ḥayawān), “camel” (al-ibil), etc.
- 50.
Examples are: “who” (man), “what” (mā), “which” (ayy), “where” (ayna), and “when” (matā).
- 51.
Examples are: «wa’l-sāriq wa’l-sāriqa» (Q.5:38), “the male and female thief.”
- 52.
Example: “There is no man in the house” (lā rajul fi’l-dār).
- 53.
Examples include: “there is alms tax for the property of the Muslim” (fī māl al-Muslim al-zakāt). Al-Bājī concludes: “And these alfāẓ-expressions, when cited, are inked with their general sense (ʿumūm), and their rulings are applied to all that falls under them, unless a particularization (takhṣīṣ) is revealed by way of divinely-sanctioned decree (nuṭq) or rational inference (istinbāṭ).”
- 54.
Al-Bājī defines mujmal in his introductory chapter on definitions (p. 12, §15): “Such as whose maʿnā-intension is not understood from its lafẓ-expression, and so requires something else for its explanation.” Here in this current section (p. 18, §27), he notes: “And as pertains to the Qur’ān there is a fourth type [i.e., after naṣṣ, ẓāhir, and ʿāmm] by which drawing indication (istidlāl) does not occur, but the Scholars of Dialectic (Ahl al-Jadal) have appended it to these three types. It is the “ambiguous” (mujmal), like His decree, Most High: «And render [unto him] his due (ḥaqq), on the day of his harvest» [Q.6:141]. For this is mujmal—there is understood from the apparent meaning (ẓāhir) of the lafẓ-expression neither the genus of the ḥaqq, nor its measure—so compliance with it is not possible, nor usage of it, except by means of something which ties it to something else explaining it.”
- 55.
al-Bājī, Minhāj, Turkī ed., pp. 18–21, §§28–36.
- 56.
Having provided an example, al-Bājī concludes: “Thus, for this and what resembles it, there is no disagreement (khilāf) among our [Mālikī] companions that it is restricted to its reason (sabab), and no [ḥukm] is extended by way of it to anything else [besides its reason].”
- 57.
Al-Bājī reports: “And regarding this our [Mālikī] companions disagreed; for some of them said: ‘It is restricted to its reason;’ while [al-Qāḍī] Ismāʿīl [Abū Isḥāq (Mālikī; d.282/895)] said: ‘It is linked with its general sense (ʿumūm), and not restricted to its reason. And [this latter opinion] is the valid one (al-ṣaḥīḥ).” Turkī’s footnote (p. 20, n.2) explains that the Qāḍī Ismāʿīl is here being referenced.
- 58.
Al-Bājī explains: “Like his deeds (afʿāl) regarding prayer (ṣalāt), pilgrimage (ḥajj), etc., from among ritual observances (ʿibādāt) for which the revealed lafẓ-expression is ambiguous (mujmal)—according to the one who claims such. And what is of this species runs the same course with regard to obligation (wujūb) and recommendation (nadb) and permission/normative neutrality (ibāḥa) as that which was an explanation (bayān) for it.”
- 59.
Al-Bājī notes disagreement: The predominant [Mālikī] opinion (ẓāhir al-madhhab) is that such a deed be linked with obligation (wujūb); “But among our [Mālikī] companions are those who say: ‘It is [linked] with recommendation (nadb);’ and among them are those who say: ‘It is [linked] with suspension (al-waqf).’”
- 60.
Al-Bājī’s examples are eating, drinking, and bayʿ-commutation. He concludes: “And this provides indication for permission/normative neutrality (al-ibāḥa).”
- 61.
Al-Bājī provides an example, then concludes: “And this provides indication for permission, but drawing argumentative support from it is not valid—because it is of the hidden matters (umūr al-khafiyya), and it is possible that the Prophet did not know of it.”
- 62.
al-Bājī, Minhāj, Turkī ed., pp. 21–3, §§37–41. NB: at the start of his discussion of the adillat al-Sharʿ, al-Bājī lists this third aṣl as “Consensus of the Muslim Community” (Ijmāʿ al-Umma).
- 63.
Cf. al-Shīrāzī’s definition, and note that al-Bājī states Ahl al-ʿAṣr, and not ʿUlamā’ al-ʿAṣr. Although “folk” may have commonly referred to scholars—e.g., the “Ḥadīth Folk” (Ahl al-Ḥadīth)—perhaps this broader term facilitates al-Bājī’s incorporation, as a subcategory, of the Mālikī “Consensus of the Medinese” (ijmāʿ Ahl al-Madīna).
- 64.
Al-Bājī notes two opposing opinions: (1) that of Dāwūd (the famed imām of the Ẓāhirī school; d.270/883), who claimed ijmāʿ “is not a proof (ḥujja) except for the ijmāʿ of the jurists (fuqahā’) of the Age of the Companions, specifically, with the condition that the doctrine of all of them be manifest;” and (2) that of the Shāfiʿī jurist Ibn Abī Hurayra (a disciple of Ibn Surayj; d.345/956), who claimed that if the original doctrine gaining the sanction of ijmāʿ was uttered by an imām (in the sense of community leader), then it is not a proof (ḥujja), because it is possible that rebuttals were abandoned from fear of treason (iftiyāt) against him. Al-Bājī concludes by referring us to his work on uṣūl al-fiqh (Turkī, p. 22, n. 6, cites the Iḥkām al-Fuṣūl), wherein: “We have provided indicant for the nullification (ibṭāl) of that, all of it.”
- 65.
Any third doctrine would be against their ijmāʿ, and would be null and void. Al-Bājī reports the variant opinion of the Ẓāhirīs and some Ḥanafīs—that bringing a third doctrine is allowed—and that he has explained its nullification (ibṭāl) in his Kitāb al-Uṣūl (meaning, his Iḥkām).
- 66.
Importantly, one of al-Bājī’s examples reads: “Like that by which Mālik drew argumentative support against Abū Yūsuf in the disputation session (majlis) of [Hārūn] al-Rashīd, with regard to the ‘problem (mas’ala) of the ṣāʿ-measure’. Abū Yūsuf recanted and submitted to the validity of the ijmāʿ of the Ahl al-Madīna for such as enjoys this manner of conveyance.” He concludes, after a second example: “And this is a proof (ḥujja) obliging adherence to it, and performance (ʿamal) by way of it.” Whether or not such a majlis took place—and, in the absence of evidence to the contrary, there is no reason to believe it did not—is irrelevant. Either way, it (1) supports a notion that early jadal theory (and in this case, uṣūl theory) was developed in part from an analysis of past juridical disputation; and (2) shows that, at least in this instance, dialectic was recognized by later theorists as fine-honing the argumentative conclusiveness of certain uṣūl. That is to say, Abū Yūsuf may first have generally rejected the argumentative conclusiveness of Consensus of the Medinese; but when confronted by Mālik, in dialectical disputation at the court of Hārūn al-Rashīd, he was unable to refute that subtype of Consensus of the Medinese whose method (ṭarīq) of conveyance was sound transmission (naql). Abū Yūsuf’s concession is a prime illustration of a legal theory—an aṣl, in fact—gaining conclusiveness through dialectic. Whether or not such an event actually occurred, it is nevertheless important that al-Bājī references it in his jadal-theory treatise.
- 67.
al-Bājī, Minhāj, Turkī ed., p. 24, §§43–4.
- 68.
The Hans Wehr Dictionary of Modern Written Arabic (4th ed., s.v. “تقدير”) accurately locates taqdīr as a technical term of grammar, meaning: “implication of a missing syntactical part.”
- 69.
Al-Bājī’s first example is from Q.26:63: «[We revealed to Moses]: ‘Strike the sea with your staff;’ and it was split.» Al-Bājī explains: “So [Moses] struck, and it was split.” The omission in the original is “so he struck;” God’s discourse is thus incomplete without our assuming the unspoken response (jawāb) of Moses’ action. We can, however, supply the omission for ourselves thanks to the indicants provided by the discourse (God’s command to strike, coupled with the result of striking), and this is the nature of laḥn al-khiṭāb.
- 70.
Al-Bājī employs the same example as al-Shīrāzī (Q.12:82) in his Mulakhkhaṣ fi’l-Jadal (see the above note for al-Shīrāzī’s hierarchy of istidlāl). Having confirmed that the maʿnā-intension of «Ask the village (wa is’al al-qaryata),» is in fact, “ask the folk of the village (ahl al-qarya)” al-Bājī concludes: “And this obliges its implication (taqdīr) in the instruction, so it is in the status of something spoken (bi-manzilat al-manṭūq bihi).” As a quick aside, note the formula “X is in the manzila of Y”; this is a very common expression in the Umm compendium, and I will draw attention to it in the analyses of the subject-text. In the realm of legal argument, I have termed it “manzila-subsumption.”
- 71.
Al-Bājī’s procedural norm: “the implication (taqdīr) of this [omission] is not allowed without a supporting dalīl-indicant […] because the discourse is independent without the implication of an omission.”
- 72.
al-Bājī, Minhāj, Turkī ed., p. 24, §45. Al-Bājī considers these terms synonymous. As noted above, he concludes: “And this is what al-Shāfiʿī calls al-qiyās al-jalī.”
- 73.
al-Bājī, Minhāj, Turkī ed., pp. 25–6, §46.
- 74.
Al-Bājī’s first example is the Prophet’s saying: “Works are only by way of intentions (innamā al-aʿmāl bi’l-niyyāt).” He concludes: “And it is understood from this that it is not ‘work’ (ʿamal) when it is devoid of intention (niyya).” Importantly, he lists the alfāẓ-expressions which “Our Shaykh” Abū Isḥāq al-Shīrāzī considered to belong to the category of al-ḥaṣr: (1) “only” (innamā); (2) the definite article alif and lām; (3) “that” (dhālika); and (4) the genitive construction (al-iḍāfa). Al-Bājī disagrees, however, accepting only innamā, and directs us to his uṣūl work for a full explanation. He also cites an indication that Mālik held the lām kay (in the sense of “due to”) to be a lafẓ-expression in this category of Ḥaṣr. Al-Bājī’s referring the reader to another of his treatises for a more complete exposition, or argument, is also a frequent practice of al-Shāfiʿī in our subject-text. Such editorial comments are noteworthy; they reveal an intra-doctrinal consistency, and provide support for the “traditional status quo” of authorship and compilation.
- 75.
al-Bājī, Minhāj, Turkī ed., pp. 26–7, §§47–8.
- 76.
NB: al-Bājī’s example is a variant of the Prophetic saying employed by al-Shāfiʿī in one of the dialectical sequences (§§248ff.) we will explore. This is an important indicant of continuity in jadal teaching and practice, from proto-system to full-system theory.
- 77.
Al-Bājī’s example: “Like our doctrine, regarding the ʿilla for the proscription of grape-wine (taḥrīm al-khamr), that [the ʿilla] is ‘euphoric intensity’ (al-shidda al-muṭriba); and this is known by [the method of] ‘negation and presence’ (al-salb wa’l-wujūd). Which is to say that when ‘euphoric intensity’ is present in the grape-wine, proscription (taḥrīm) is established, and when it is absent proscription is absent; so the most apparent interpretation (ẓāhir) is that [‘euphoric intensity’] is an ʿilla for [proscription].”
- 78.
This definition not only confirms that shared rulings (aḥkām) may be among the khaṣā’iṣ of al-Shīrāzī’s definition for Type I qiyās al-dalāla (see above), but that it might in fact be the prominent focus of this type of qiyās. Al-Bājī’s definition, read in isolation, would bring one to infer the distinctive marker of this species of qiyās is the indicant provided by a shared ḥukm.
- 79.
Meaning, as naẓā’ir (parallels), a pair of rulings (aḥkām) preserve the same relationship for certain subjects in God’s Law. See the note for al-Shīrāzī’s Type II qiyās al-dalāla, above.
- 80.
See the note for al-Shīrāzī’s Type III qiyās al-shabah, above.
- 81.
al-Bājī, Minhāj, Turkī ed., pp. 27–9, §§49–53. The importance of this appendix to al-Bājī’s qiyās typology is self-evident. There is a patent overlap with the various modes of ʿilla-justification outlined in uṣūl al-fiqh works, which are here presented as R’s istidlāl in dialectical debate. This supports a theory of this monograph; mainly, that methods developed for private ijtihād were shaped in part by an anticipation of dialectical confrontation. The epistemes of jadal, in other words, show themselves a primary dynamic in shaping the epistemes of uṣūl al-fiqh. Al-Bājī notes: “The modes of drawing indication (wujūh al-istidlālāt) are many, but five modes are repeated and are most frequent among disputants.” These he lists as above. Notably, al-Shīrāzī also discusses such species of istidlāl in his Lumaʿ, in the Chapter on Categories of Correlational Inference (Bāb Aqsām al-Qiyās). He begins by stating (Mustū ed., p. 210, §261): “And as for istidlāl, it branches out from what we have mentioned of the categories of qiyās. And it is according to types….” He then discusses: (1) al-istidlāl bi-bayān al-ʿilla (two types; cf. al-Bājī above); 2) al-istidlāl bi’l-taqsīm (two types; cf. al-Bājī); and 3) al-istidlāl bi’l-ʿaks (cf. al-Bājī). There is a more thorough treatment in al-Shīrāzī’s Mulakhkhaṣ, which will be presented in Sect. 4.3.
- 82.
As the term awlā would indicate, al-Bājī’s example reveals this species of qiyās-related istidlāl as an a fortiori argument. The rejection of the testimony (shahāda) of non-Muslim subjects (Ahl al-Dhimma) is justified in that: (1) the testimony of a profligate Muslim (fāsiq) is rejected due to his depravity (fisq); (2) it is known that the depravity of the non-Muslim (kāfir) is greater than the depravity of the Muslim [as it includes unbelief]; thus (3) it is confirmed that not accepting the testimony of the non-Muslim is both awlā (more fitting) and aḥrā (more appropriate). With the latter term (aḥrā), one might also define this species of istidlāl as an a potiori argument.
- 83.
NB: this mirrors the ijtihād ic procedure of “examination and division” (al-sabr wa’l-taqsīm), as it appears in full-system uṣūl al-fiqh treatises. See Hallaq, History, p. 92.
- 84.
Al-Bājī’s example clarifies this species of istidlāl: “It is like the istidlāl of the Mālikī against the Ḥanafī—with regard to the one who falsely accuses (qadhafa) his wife [of adultery], then irrevocably separates from her (abānahā), [and ought to] do the liʿān-procedure—that what Abū Ḥanīfa opined for this is the contradictory (khilāf) of the uṣūl. For [Abū Ḥanīfa] voided [the husband’s] false accusation (qadhf), and obliged neither ḥadd-punishment nor liʿān-procedure for it. And this is the contradictory of the uṣūl because the uṣūl are clear (mubayyana) that there must be either the ḥadd-punishment or the liʿān-procedure for whomever falsely accuses a free, chaste woman.”
- 85.
Al-Bājī’s example does not at first shed much light on this mode of istidlāl. He says: “It is like the istidlāl of the Mālikī for [the ruling] that hair (al-shaʿr) does not become impure (najas) by way of death; indeed, if it became impure by death, then taking it while alive would not have been permitted, like the meat and the bones.” The problem is that this example does not tell us the ʿilla. Reviewing another explanation from al-Bājī’s Iḥkām (Turkī ed., vol. 2, p. 679, §736) renders the current example clear: “When [R] clarifies (bayyana) that the ʿilla for the prevention (manʿ) of the taking of an organ from an animal while alive is that the soul (rūḥ) is resident in that organ, and he provides indication of the contingency (taʿalluq) of that ḥukm on this ʿilla; it is permitted that he draw indication by means of that for the soul’s not being resident in the hair—because if the soul was resident in it, then taking it while alive would have been forbidden, like [taking] the meat. And if it is allowed that the soul be resident in the hair, while taking it while alive is allowed, then the ʿilla which he appointed for the prevention of that would be destroyed (intaqaḍat).” Cf. Hallaq, History, p. 100, where he reviews the very same explanation from al-Bājī’s Iḥkām in his discussion of reductio ad absurdum arguments under the rubric of qiyās.
- 86.
al-Bājī, Minhāj, Turkī ed., pp. 29–31, §§54–7. Al-Bājī explains: “What preceded was discourse regarding the types of valid indicants (al-adilla al-ṣaḥīḥa) from among the adillat al-maʿqūl. Discourse will now concern what is connected to them, but not of them.” He then treats (and repudiates) a number of fallacious modes, dalīl al-khiṭāb among them (cf. al-Shīrāzī’s hierarchy, in which dalīl al-khiṭāb is valid).
- 87.
al-Bājī, Minhāj, Turkī ed., p. 31, §§58. NB: at the start of his discussion of the adillat al-Sharʿ, al-Bājī lists this third domain as “Presumption of Continuity of a Status Quo Ante of Absolution from Obligation” (Istiṣḥāb Ḥāl Barā’at al-Dhimma).
- 88.
Al-Bājī’s example mas’ala is the disagreement between the Mālikī (blood-money [diya] for a Zoroastrian is 800 dirhams) and the Ḥanafī (it is the same as the blood-money for a Muslim). The former argues: “What I have asserted is an object of agreement (muttafaq ʿalayhi), but what you have asserted is an augmentation (ziyāda); and the status quo ante (aṣl) for this is exemption from obligation (barā’at al-dhimma), so involving [obligation] requires a dalīl-indicant from God’s Law.” Al-Bājī concludes: “And the Disputation Theorists (Ahl al-Jadal) call this: ‘That the ḥukm be determined by way of the lesser of what is professed (an al-ḥukm bi-aqalla mā qīla).”
- 89.
al-Bājī, Minhāj, Turkī ed., pp. 31–33, §§59–62.
- 90.
Al-Bājī provides no definition, but his example mas’ala is the same as al-Shīrāzī’s, above. Al-Shīrāzī, as we have seen, was not a Shāfiʿī who subscribed to the validity of this species of istiṣḥāb.
- 91.
These include (1) the “Presumption of Continuity of a Status Quo Ante of Generality” (Istiṣḥāb Ḥāl al-ʿUmūm) professed by some Shāfiʿīs and Abū Bakr al-Bāqillānī (Mālikī, d.403/1013); (2) a mode of “istidlāl for the negation of something by way of the absence of a dalīl-indicant for it” attributed to al-Shāfiʿī himself; and (3) a mode attributed to some Ẓāhirīs, who claim “I am negating (anā nāfin), so furnishing a dalīl-indicant is not enjoined upon me; rather, the dalīl is only enjoined upon the one affirming (al-muthbit).”
- 92.
Minhāj, Turkī ed., p. 33, §63.
- 93.
Ibid., 34–41, §§64–79.
- 94.
See al-Baṣrī, Muʿtamad, Ḥamīd Allāh ed., vol. 2, pp. 697ff.; and K. al-Qiyās al-Sharʿī, pp. 1031–3 (trans. of the latter in Hallaq, “Treatise,” pp. 207–9). Note that qiyās al-ṭard, according to the definition of al-Baṣrī, matches the definitions of al-Shīrāzī, al-Bājī, et al. for qiyās al-ʿilla.
- 95.
See al-Baṣrī, Muʿtamad, Ḥamīd Allāh ed., vol. 2, pp. 698–9; and K. al-Qiyās al-Sharʿī, pp. 1031–2 (trans. of the latter in Hallaq, “Treatise,” pp. 207–8). His definitions there match well with Sānū’s (Muʿjam, s.v. “قياس العكس”): “The confirmation (ithbāt) of the contradictory (naqīḍ) [¬B] of a ḥukm [B] of a known thing (maʿlūm) [X], in another known thing [Y], due to the presence of the contradictory (naqīḍ) [¬A] of [X’s] ʿilla [A] in [Y].”
- 96.
al-Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 22.
- 97.
Ibid., vol. 1b, p. 76.
- 98.
Again, individual modes are ranked from strongest to weakest in terms of epistemic strength—i.e., in terms of the certainty or probability with which they may be understood to convey the correct solution, the true articulation of God’s Law. The most certain (and least controversial) mode is that qiyās al-ʿilla which is jalī bi’l-naṣṣ; the least certain (and most controversial) is that qiyās al-dalāla which is known as qiyās al-shabah. This is systematization at its most evident extent, and a stark illustration of the difference between “full-system” and “proto-system” legal and disputational theory. Although an early work such as al-Shāfiʿī’s Risāla is clearly representative of a systematizing effort (hence: proto-system), it boasts nothing close to this detailed hierarchy of qiyās, with its specialized terms and epistemological valuations, simply and definitively arranged in logical order.
- 99.
Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 76. See, by way of contrast, the definition for qiyās al-khafī, below.
- 100.
Ibid., vol. 1b, pp. 76–7.
- 101.
See MF, s.v. “أضحية”, vol. 5, p. 102, §59, for an explanation. Briefly, the Dāffa were a poverty-stricken group who settled at Medina; the Prophet wanted to hasten the charity of the Medinans by forbidding them to store the remains of their sacrifices for more than three nights.
- 102.
al-Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 77.
- 103.
Ibid., vol. 1b, p. 78.
- 104.
Ibid., vol. 1b, p. 77.
- 105.
Ibid., vol. 1b, pp. 64–5.
- 106.
See also the notes on al-istidlāl bi’l-awlā, below.
- 107.
Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 78.
- 108.
Ibid.
- 109.
Ibid.
- 110.
Ibid., pp. 78–9.
- 111.
Note that maʿnā and ʿilla occur here as near-synonyms, and we are granted an insight into the type of “intension-property” a maʿnā can engender.
- 112.
Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 79.
- 113.
Ibid., vol. 1b, pp. 79–80, n. 11. At the end of this footnote, Niyāzī says: “According to the Ḥanafīs, al-qiyās al-khafī is one of the types of istiḥsān.” We should note this as another example of how jadal shaped legal theory: the broadly untenable category of istiḥsān was either reduced to only those components which proved endoxa in the long run, or it was redefined in such a way as to parallel or subsume certain endoxa inference methods to which other schools applied different technical terms.
- 114.
Ibid., vol. 1b, p. 79.
- 115.
al-Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 80.
- 116.
Ibid.
- 117.
Ibid. See MF, s.v. “(الصلاة على الراحلة (أو الدابّة”, vol. 27, pp. 227ff., for details on this mas’ala.
- 118.
Compare this to Type II qiyās al-dalāla, below, where one first goes outside of the farʿ (ẓihār of the dhimmī) to something which is highly analogous to it (ṭalāq of the dhimmī), before tracing that naẓīr-relationship back to a naẓīr-pair in the uṣūl (ṭalāq and ẓihār of the Muslim).
- 119.
The word جاز is missing from Niyāzī’s transcription. I have supplied the omitted word from the Ṣanʿā’ manuscript, fol.5b, end of line 12.
- 120.
al-Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, pp. 80–1. NB: in the second part of his explanation, al-Shīrāzī explains the example in quite a different light: as a type I qiyās al-dalāla from the whole category of uṣūl known as wājibāt, but with the ʿaks element of qiyās al-ʿaks. The whole category of wājibāt shares the ḥukm of “not permitted while mounted on a traveling camel, without validating excuse.” Thus, since the opposite ḥukm (permitted) is established for sujūd al-tilāwa, it must not belong to the category of wājibāt.
- 121.
Ibid., 81.
- 122.
Ibid.
- 123.
Note the use of the formula a-lā tarā in a justification of qiyās method. This staple formula of dialectic will be treated at the end of Chap. 6.
- 124.
Al-Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 81.
- 125.
Ibid.
- 126.
Ibid., pp. 82–4.
- 127.
Ibid., p. 84.
- 128.
This view is confirmed in his Maʿūna (Turkī ed., p. 140). Al-Shīrāzī notes that this section on qiyās has been according to his choice of categorization; there are other Shāfiʿīs who do it differently, with four types: jalī, wāḍiḥ, khafī, and shabah. These he illustrates with short examples, then closes the section by expressing his hope that his own categorization is clearer and more beneficial (Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, pp. 84–5).
- 129.
Ibid., p. 85.
- 130.
Ibid., p. 86.
- 131.
Ibid.
- 132.
See Lane, Lexicon, s.v. إثم and ذنب. Here we learn that ma’tham is synonymous with ithm, which is in turn a synonym of dhanb (pl. dhunūb)—except that dhanb refers to both intentional and inadvertent transgression, whereas ithm refers only to intentional sin.
- 133.
Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 86.
- 134.
See ibid., vol. 1b, pp. 64–5.
- 135.
Note, however, that the same example of ta’fīf is used to illustrate al-qiyās al-jalī—only this time, the ʿilla of harm/insult is discussed, and shown to be amplified in the branch-case of striking (Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, p. 77).
- 136.
Ibid., 87.
- 137.
Although this first procedure resembles objection and refutation, it is recognizably a true mode of istidlāl once the following is born in mind: the opponent is the mukhālif—his opinion is contradictory to that of the one doing istidlāl (mustadill). By eliminating all of the opponent’s possible justifications for “X is not the case”, one simultaneously proves one’s contradictory solution “X is the case.” Eliminating all possible support for not-X serves as a proof for X, and vice versa.
- 138.
Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, pp. 87–8.
- 139.
Niyāzī explains (p. 86, n. 6): if the husband refrains from approaching his wife after such an oath for 4 months, irrevocable divorce ensues, according to the Ḥanafīs. According to the Shāfiʿī’s, however, he is given two options: return to the marriage through the sexual act, or divorce; if he refuses both, the qāḍī considers it a single divorce.
- 140.
Hallaq references the same example—as argued by al-Ghazālī in his Shifā’—in his discussion of non-analogical modes of qiyās, and subsumes this argument under reductio ad absurdum (History, pp. 100–101; I have borrowed his translations of ṣarīḥ and kināya). As Hallaq shows us, al-Ghazālī presents this example in syllogistic form (I have modified it to better match al-Shīrāzī’s formulation): if Īlā’ is Ṭalāq, then Īlā’ is EITHER Ṣarīḥ OR Kināya; Īlā’ is not Ṣarīḥ AND Īlā’ is not Kināya; therefore, Īlā’ is not Ṭalāq. Thus, as Hallaq says: “In al-Ghazālī’s view then, the reductio argument as presented in this case seems to manifest the characteristics of the conditional hypothetical syllogism in the modus tollens.”
- 141.
As described by Hallaq (History, p. 92).
- 142.
Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, pp. 89–90. NB: Shīrāzī provides no definition in his Mulakhkhaṣ, but starts right in with an example. Niyāzī (p. 89, n. 1) instead supplies the following observations in a footnote: (1) this species of istidlāl is mentioned by al-Juwaynī, Abū Yaʿlā [al-Qāḍī, Ḥanbalī; d.458/1066], al-Bājī, and Ibn ʿAqīl; (2) most jurists call it qiyās al-ʿaks, including Abū al-Ḥusayn al-Baṣrī, al-Āmidī, Ibn al-Ḥājib, et al.; (3) al-Rāzī (Fakhr al-Dīn) and al-Bayḍāwī said it is “drawing indication by way of implication” (istidlāl bi’l-talāzum); (4) most Ḥanafīs—like al-Sarakhsī, al-Bazdawī, al-Samarqandī, and al-Nasafī—call it “drawing indication by way of denial” (al-istidlāl bi’l-nafy) and “justifying the occasioning factor by way of denial and absence” (al-taʿlīl bi’l-nafy wa’l-ʿadam); (5) al-Baṣrī defines it (as we see in his Kitāb al-Qiyās al-Sharʿī) as: “obtaining the contradictory (naqīḍ) of something’s ruling, for something else, due to their divergence with regard to the occasioning factor (ʿilla) of the ruling.” [Niyāzī cites numerous uṣūl and jadal works]. Note that al-Bājī also provides no definition, but turns immediately to the familiar hair, meat, and bones example (Minhāj, Turkī ed., p. 29, §53).
- 143.
- 144.
Perhaps, thanks to the reverse order of al-Shīrāzī’s example vis-à-vis qiyās al-ʿaks, we might make a distinction between al-istidlāl bi’l-ʿaks and qiyās al-ʿaks (or at least acknowledge that the former has two modes). We might define al-istidlāl bi’l-ʿaks (or its first mode) as the bringing together, in a context of ithbāt al-ʿilla, of two cases with contradictory ḥukm s, for the purpose of providing indication that they must have contradictory ʿilla s. Qiyās al-ʿaks (or the second mode of al-istidlāl bi’l-ʿaks) is the procedure in reverse: bringing, in a context of discovering a substantive ruling, an established source-case with a contradictory ʿilla, for the purpose of providing indication that aṣl and farʿ must also have contradictory ḥukm s.
- 145.
Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, pp. 91–3.
- 146.
Ibid., p. 91, n. 1.
- 147.
Niyāzī also provides the Ḥanafī opinion (drawing on Sarakhsī, Samarqandī, Bazdawī, et al.), in n. 3 on p. 91: “If the ḥukm is established by a specifically-assigned occasioning factor (ʿilla mutaʿayyana), and has no other ʿilla, then istidlāl by way of [the ʿaks] is valid. But if not, it is not valid, due to the allowance that the ḥukm be contingent upon some other property (waṣf) besides it.”
- 148.
Ibid., vol. 1b, p. 92–3.
- 149.
Ibid., p. 93.
- 150.
See MF, s.v. نباش, vol. 40, pp. 18–23, where this ruling is confirmed.
- 151.
Al-Bājī, Minhāj, Turkī ed., p. 25, §46 [he restricts ḥaṣr to innamā alone]; al-Shīrāzī, Mulakhkhaṣ, Niyāzī MA ed., vol. 1b, pp. 70ff. [with ḥaṣr as innamā on p. 75]).
- 152.
Ibid., vol. 1b, p. 94, n. 1.
- 153.
Ibid., vol. 1b, pp. 94–5.
- 154.
Niyāzī (p. 94, n. 2) notes that both Shāfiʿī’s and Ḥanafīs permit proxyship for one incapable of undertaking the ḥajj, and whose lack of ability looks never to be reversed, nor do they disagree on the allowance of the proxy to take maintenance costs (nafaqa) from him. Disagreement concerns only the allowance of the proxy’s taking a hiring fee (ijāra); Shāfiʿīs but not Ḥanafīs allow this.
- 155.
Ibid., p. 95. In a following section (pp. 95–6), al-Shīrāzī describes another mode which opponents incorrectly link to al-istidlāl bi’l-uṣūl: that one draw indication by way of one/some of the uṣūl for the locus of disagreement (while the remainder of the relevant uṣūl indicate otherwise). He supplies a Ḥanafī argument by way of illustration, then refutes it. Finally, al-Shīrāzī closes his discussion of the adillat al-maʿqūl in his Mulakhkhaṣ by pointing out additional modes which are invalid and incorrectly placed under this rubric: (1) al-istidlāl bi’l-qarā’in (pp. 97–100); and (2) ḥaml al-muṭlaq ʿalā al-muqayyad min jihat al-lafẓ (pp. 101–3). Both are illustrated and refuted.
- 156.
Miller treats the questions of classical juridical dialectic in detail (“Islamic Disputation Theory,” pp. 90–113). For a summary and partial critique, see my dissertation (pt. 1, pp. 124–35).
- 157.
A notable exception is al-Shīrāzī in his Maʿūna. He affords the topic full treatment, however, in his Mulakhkhaṣ.
- 158.
Minhāj, Turkī ed., pp. 34–41, §§64–79. Al-Bājī begins by listing his five types of question (su’āl) in the precise order he will discuss them (as will be outlined above). Having done so, he adds: “And according to the madhhab-opinion of the one who allows adherence to a qualified jurisprudent (taqlīd), the questions are six. For the third question [“the question about the indicant for the opinion” (al-su’āl ʿan dalīl al-madhhab), see above] becomes: “Does he have a dalīl-indicant for the problem (mas’ala), or does he practice adherence (taqlīd) regarding it?” Importantly, al-Bājī then notes: “And belonging to every type of su’āl is a type of response (jawāb) specifically associated with it.” He concludes his introduction, saying: “I will explain that, and put it into order (urattibuhu), if God wills, in such a manner as will draw understanding close, and clarify its normative procedure (ḥukm). And from God comes success!”
- 159.
Ibid., pp. 34–5, §§65–6. As with previous outlines, al-Bājī’s examples and discussions will mostly be omitted.
- 160.
In al-Bājī’s example, Q brings two narrated rulings of Mālik b. Anas [eponym of the Mālikī madhhab], then asks R whether he prefers one, or whether the two dalīl-indicants are equal according to him. Following this, al-Bājī notes: “All of these are valid questions in intellectual investigation (naẓar), and calculated methods (ṭuruq maqṣūda).”
- 161.
Minhāj, Turkī ed., pp. 35–6, §§67–9.
- 162.
The relationship between the legal literary genres of “the Science of Juridical Disagreement” (ʿilm al-khilāf) and “the Science of Dialectical Disputation” (ʿilm al-jadal)—with the former providing material and past practice, and the latter providing theory and systematic method—is brought into sharp focus here.
- 163.
Among al-Bājī’s examples is: “[Q] asks about date-wine (nabīdh): ‘Is it called (yusammā) “wine” (khamr)?’” Cf. al-Baṣrī’s objections to “justifying the occasioning factor by way of the name” (al-taʿlīl bi’l-ism), in the following section and Appendix I.
- 164.
Al-Bājī says: “For one may disagree (yakhtalifu) about the attribute (ṣifa), like the disagreement regarding hair: ‘Does the soul reside in it?’ And about bone: ‘Does the soul reside in it?’” A typical mark of al-Bājī’s consistency, we have already encountered this mas’ala in the outline of his Aqsām Adillat al-Sharʿ (see the section and attached notes for al-istidlāl bi’l-ʿaks).
- 165.
Al-Bājī’s examples: “[Q] says to [R]: ‘What is the ʿilla for the proscription (taḥrīm) of disparity of exchange (al-tafāḍul) for wheat?’ And: ‘What is the ʿilla for the proscription of grape-wine (khamr)?’”
- 166.
Al-Bājī says (among other examples): “Like the question about the conquest of Mecca: Was it by peaceable surrender (ṣulḥan), or by force (ʿanwatan)?” He concludes his subtypes and examples by saying: “And the question about all of these [methods] is valid, because confirming [the method] leads to confirmation of the ḥukm—so the question about [the method] is like the question about the ḥukm.”
- 167.
Importantly, al-Bājī recommends that both R and Q be guardedly conservative (yataḥarrazu) in both question and response. The danger, of course, lies in accidentally conceding something which cannot be retracted. As will be seen in the analyses of the subject-text, al-Shāfiʿī—in the role of R—is often parsimonious in response. The same is true when he is questioner; at times his questions appear so carefully crafted as to elicit precisely the response necessary for elenchus.
- 168.
Minhāj, Turkī ed., pp. 36–9, §§70–5.
- 169.
If R knows Q’s madhhab-opinion, he indicates this, and is then allowed two choices: (1) he may provide indication for the validity (ṣiḥḥa) of his own doctrine; or (2) he may provide indication for the invalidity (fasād) of the doctrine of his opponent (khaṣm).
- 170.
In this case, if “the mas’ala has variant doctrines and various opinions, and the dalīl-indicant differs due to disagreement of the madhhab-doctrine of the one professing it, [R] asks [Q] about his madhhab-doctrine so that the dalīl-indicant may be in accordance with it.”
- 171.
Al-Bājī justifies the permissibility of this method, saying: “the construction is an explanation (bayān) for one of the methods of the mas’ala; it is in the status (manzila) of the rest of the methods of the mas’ala.” Importantly, what al-Bājī is suggesting here is a kind of methodological “manzila-subsumption.” (What I have termed manzila-subsumption will be discussed in the forthcoming analyses of the subject-text.) Besides this, we will see several demonstrations of an obvious crossover between fiqh-oriented charges of inconsistency (naqḍ) and method-oriented charges of inconsistency (what I have termed method-naqḍ). Al-Bājī’s allowance for a kind of methodological manzila-subsumption is indicative of the same phenomenon: crossovers—in the realm of jadal-theory—between fiqh-oriented justifications (substantive manzila-subsumption) and critiques (naqḍ), and method-oriented justifications (methodological manzila-subsumption) and critiques (method-naqḍ). The significance is that jadal, whether from the perspective of istidlāl or iʿtirāḍ, comprised justifications and critiques at two levels: (1) the substantive legal level (justifying or critiquing a ruling); and (2) the legal-theoretical level (justifying or critiquing a method). Based upon my analyses, this was just as true in al-Shāfiʿī’s day as it was in al-Bājī’s—perhaps we may consider it natural, or even unavoidable, as dialectical systems evolve.
- 172.
In al-Bājī’s example, a Mālikī R constructs his dalāla-indication on the basis of qiyās, and informs the Ẓāhirī Q that (1) if he accepts qiyās as valid, he will construct his dalāla for the mas’ala on its basis; and (2) if he does not accept qiyās, he will first provide indication that qiyās is valid.
- 173.
Al-Bājī’s example is important, for he once again refers to the mas’ala of hair we encountered in his exposition on al-istidlāl bi’l-ʿaks. Here, he explains: “It is like when the Mālikī is asked about hair: Does it become impure (najas) through death? So [the Mālikī R] says: This mas’ala, according to me, is constructed upon the fact that hair is something in which the soul does not reside. So if you concede [that] to me [I will build on it]; and if not, I will shift the debate to it [i.e., to this more primary mas’ala].” Al-Bājī explains this can only be done when the methods of the two mas’ala s are one and the same (as with the impurity and soul masā’il for hair).
- 174.
There is no disagreement as to the permissibility of the first, which is that R constructs mas’ala upon mas’ala before commencing his istidlāl. As for the second, when he begins his dalāla-indication but does not mention he intends construction, al-Bājī provides two sets of procedures. In the first case, if R builds on a mas’ala of uṣūl-principles particular to his madhhab-doctrine, the debate shifts to that mas’ala if Q does not accept it. In the second case, if R builds on a mas’ala of derived branch-cases—and Q objects, requesting a shift to debating that mas’ala—al-Bājī records two opinions: (1) Abū ʿAlī al-Ṭabarī (Shāfiʿī; d.350/961, a noted dialectician and uṣūl ist, and author of works in both genres) said: “That right does not belong to him, because it is shifting ground (intiqāl).” Abū Isḥāq al-Shīrāzī, on the other hand, said (2): “That right belongs to him.” Al-Bājī agrees with his teacher, so long as it is constructed upon one of the unambiguous uṣūl-principles (al-uṣūl al-ẓāhira).
- 175.
Minhāj, Turkī ed., pp. 39–40, §§76–7.
- 176.
Al-Bājī explains that if the mode (wajh) of the dalīl-indicant is clear (wāḍiḥ), then Q’s requesting an explanation (bayān) is disapproved of. Qualification as “clear” means that the dalīl-indicant is either naṣṣ, or ẓāhir, or ʿāmm; and al-Bājī provides examples for each. “Unclear” (ghāmiḍ), of course, is none of these, and “demand for an explanation (al-muṭālaba bi’l-bayān) for its like” is deemed appropriate. The import of this question is obvious to the objectives of the questioner, for R—proceeding cautiously as al-Bājī recommends—may merely cite an authoritative dalīl-indicant as a proof for his solution to the mas’ala at hand. If the relationship between that dalīl-indicant and the mas’ala at hand is not obvious, however, and Q does not demand clarification of their correlation, then R’s solution might slip past on the authority of the dalīl-indicant alone. In this manner an error of correlation, by which the dalīl-indicant itself ought to be rejected as irrelevant, might be overlooked.
- 177.
He says: “And these questions are arranged according to the order in which we arranged them, so that one depart from the first to the second, and from the second to third, and so on to the last of them. And it is not allowed that one begin with the question about the madhhab-opinion, then follow it with the question about the mode of the dalīl-indicant which has not been presented, and yet ask about its mode. Likewise, it is not allowed for [Q] to begin with a critique against the madhhab-opinion until he asks about the dalīl-indicant, and about its mode if it is not clear. But some of the Theorists of Intellectual Investigation (Ahl al-Naẓar) have allowed objection (al-iʿtirāḍ) by way of critique (qadḥ) before the question about the dalīl-indicant and its mode. And this is erroneous, because [Q] (sā’il) at such a time becomes [R] (mas’ūl), and he has no right to such.”
- 178.
Minhāj, Turkī ed., pp. 40–1, §§78–9.
- 179.
It is important to recognize that—with al-Bājī’s fifth question—we are shifting from a phase of information-gathering to a phase of objection, critique, rebuttal, and refutation. Although distinct from the categories of “objections” (iʿtirāḍāt) and “counter-indications” (muʿāraḍāt), the “demands”(muṭālabāt) still qualify as objections insofar as Q is initiating the problematizing of R’s solution to the mas’ala at hand through his demand for the validation (taṣḥīḥ) of X, Y, or Z. In some ways, this is a shadowy area between the question about the mode of the dalīl-indicant (the final phase of information-gathering) and outright objection (the iʿtirāḍāt). As we shall see in the analyses of the subject-text, it is often difficult to identify the dialectical questions we encounter by the muṭālabāt which al-Bājī defines here, and in later discussions; such an identification relies upon indication of the questioner’s intentions, which are not always evident in the presentations of the subject-text. This may also be a general quality of proto-system jadal—i.e., a less systematic practice of question order and formulation—for we also find questions which are oriented towards an opponent’s objections (a category we do not find in the jadal-theory works), along with the standard questions oriented towards his istidlāl. Returning to the muṭālabāt, al-Bājī concludes: “So [R] is confronted with the validation (taṣḥīḥ) of all this, according to what we will explain in its proper place.” As we are able to observe in subsequent chapters of the Minhāj: such objections as are designated “al-muṭālaba bi-X”—or which are, in other ways, linked to muṭālabāt—constitute the first set among the ordered objections pertaining to each mode of istidlāl.
- 180.
Al-Bājī concludes: “[R] is obliged to eliminate the question, and to repel it, by way of what arrests it, so that [Q] concedes the dalīl-indicant to him.”
- 181.
Meaning, R takes on the role of Q.
- 182.
It is important to note that the last chapters of both al-Shīrāzī’s Maʿūna and al-Bājī’s Minhāj are dedicated to ordered listings of “modes of preponderance” (tarjīḥāt). The above description of muʿāraḍa makes clear why this is so—for among R’s responses to Q’s muʿāraḍa is that he trump the opposing dalīl-indicant by way of “giving preponderance” (tarjīḥ) to his own. It is also important to recognize some of the hallmarks of muʿāraḍa. The first is that the modality of Q’s role has become “constructive” as opposed to merely “destructive.” That is to say, he has moved from undermining and in other ways invalidating R’s solution to the mas’ala at hand, to supplanting that solution with one of his own. Q’s opposing R’s dalīl-indicant with another dalīl-indicant initiates the process by which R may eventually be forced to concede Q’s solution. And this in turn brings about another hallmark characteristic of muʿāraḍa: the switching of roles. For as Q is now himself proposing a solution, rather than merely undermining R’s, he must defend his solution against all that R may bring against it by way of demand (muṭālaba) and objection (iʿtirāḍ). Thus, the original questioner becomes the new respondent, and the original respondent the new questioner. Al-Bājī closes his description of the dialectical questions by saying: “And this is the whole collective of modes of critique (qadḥ) and response (jawāb). And as for the details, I will mention them according to the ordering (tartīb) of the adilla-indicants, one by one, and I will explain the responses for them, if God wills.” Thus, we are again reminded of the organizing principle of this (and al-Shīrāzī’s) jadal-theory. The questions, objections, and responses are all ordered according to the hierarchy of istidlāl, and a parallel objective to Aristotle’s ordering of topoi is easy to discern.
- 183.
“Islamic Disputation Theory,” pp. 134–41. See my summary review and partial critique (“Dialectical Forge,” pt. 1, pp. 135, 190–6).
- 184.
“Treatise,” pp. 203ff.
- 185.
Hallaq closes his description by noting the systematic checking and “methodical interrogation” of dialectic. He then concludes: “It is precisely this question-and-answer method which characterizes juridical dialectic in general and al-Baṣrī’s treatise in particular” (“Treatise,” p. 205).
- 186.
This outline, like the second and third appendices, is distilled from the Maʿūna and Minhāj, in the precise chapter order of treatment. Bear in mind that these are only the higher order categories; a multitude of subtypes have been omitted, along with categories deemed by the authors to be problematic or fallacious, systematic responses to objections, and other elements. The responses (ajwiba, s. jawāb) are of particular importance; nearly every type and subtype of objection is twinned with one. In our lens-texts, one will find not only how to object (as Q) to the various domains of istidlāl, but how to defend (as R) against such objections. Our treatises are not manuals only for the questioner; they offer a complete, systematic structure for both positions in a dialectical disputation.
- 187.
Importantly, al-Bājī begins his section on qiyās-oriented objections with an explanation of their logical sequence (see the appendix). All fifteen higher categories are grouped under more general headings: “demands” (muṭālabāt; categories 1–7, above), “objections” (iʿtirāḍāt; categories 8–14), and “counter-indications” (muʿāraḍāt; category 15). Although al-Bājī’s choice of terms does not always correspond with his opening tripartite division, it must nevertheless be considered a first-rank of topoi for this particular subset of qiyās-oriented dialectical moves; and it is noteworthy that al-Bājī’s detailed discussions for each category follow it to the letter, despite his references to all fifteen categories as al-iʿtirāḍ bi-X, al-iʿtirāḍ bi-Y, and so on.
- 188.
“Particularization of the occasioning factor” (takhṣīṣ al-ʿilla) is the much-problematized theory that an ʿilla occasioning ḥukm X, in general circumstances, can be “particularized” by a certain preventative factor (māniʿ) in order to occasion ḥukm Y, in a particular circumstance.
- 189.
The significance of divergent theory is even more plain when further comparisons are drawn with Ibn ʿAqīl (al-Shīrāzī’s famed Ḥanbalī student), and al-Juwaynī (al-Shīrāzī’s distant Shāfiʿī colleague and sometime opponent in disputation).
- 190.
I am presently compiling an expository Primer in Classical Islamic Juridical Dialectic which will explore and illustrate the systems of al-Shīrāzī, al-Bājī, et al. in full detail.
- 191.
This, and all topics mentioned so far, are in the “Section: On the Definition (ḥadd) of Qiyās” (al-Baṣrī, K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., pp. 1032–3; Hallaq, “Treatise,” pp. 207–9).
- 192.
The “Section: On Arguments Regarding the Ḥukm” (Ḥamīd Allāh ed., pp. 1033–5; Hallaq, “Treatise,” pp. 209–12). For the ordered questions suggested by al-Baṣrī, please see my Appendix I.
- 193.
The “Section: On Arguments Regarding the ʿIlla ” (Ḥamīd Allāh ed., p. 1035; Hallaq, “Treatise,” pp. 212–13).
- 194.
Again, this parallels the function of topoi, insofar as Q begins through this process to “locate” any problematic elements of R’s qiyās-reasoning upon which to focus his dialectical questions and objections. Already at this stage, the dialectical move of al-qawl bi-mūjib al-ʿilla and the charge of ikhtilāf mawḍūʿ al-aṣl wa’l-farʿ (i.e., fasād al-waḍʿ), among others, may become open possibilities for Q (see Appendix I).
- 195.
The “Section: On what Provides Indication for the Validity (ṣiḥḥa) of the ʿIlla” (Ḥamīd Allāh ed., pp. 1036–8; Hallaq, “Treatise,” p. 213–16).
- 196.
The “Section: On what Distinguishes the ʿIlla as pertains to Modes which Invalidate it” (Ḥamīd Allāh ed., pp. 1039–45; Hallaq, “Treatise,” pp. 216–23).
- 197.
Two Sections: “On Tarjīḥ of the ʿIlla of the Aṣl over another ʿIlla, and Tarjīḥ of a Qiyās over a Qiyās” (Ḥamīd Allāh ed., p. 1046; Hallaq, “Treatise,” pp. 223–4). These are followed by a fascinating section in which al-Baṣrī discusses a meta-logical concern; mainly, the manner in which the familiar qiyās-oriented dialectical moves (muʿāraḍa, naqḍ, etc.) all belong to the domain of tarjīḥāt (Ḥamīd Allāh ed., p. 1047; Hallaq, “Treatise,” pp. 224). I have labelled this simply “Additional Tarjīḥ-related Discussion” in the appendix.
- 198.
The “Supplement (ḍamīma) on Qalb” (Ḥamīd Allāh ed., pp. 1048–50; Hallaq, “Treatise,” pp. 224–8).
- 199.
“Treatise,” p. 200.
- 200.
Ibid. As we have seen, there were in fact several focal points of juridical dialectic—critical areas of testing and contention spanned the full gamut of istidlālāt—as listed above and in the appendices, and, presumably, including whatever other principles and sources (e.g., istiḥsān, maṣlaḥa, ʿurf, etc.) to which a jurist-dialectician might subscribe.
- 201.
Ibid.
- 202.
Ibid., citing earlier discussions in al-Baṣrī’s Muʿtamad.
- 203.
Ibid., 201; citing the Muʿtamad.
- 204.
Ibid., 201–2; from the Muʿtamad.
- 205.
Ibid., 202–3.
- 206.
Note that naqḍ also bears the sense of “destruction.” Quite possibly this nuance was intended throughout the period in which the term gained its fixed technical sense as a species of objection. Naqḍ, after all, is a purely “destructive” critique by which the opponent’s qiyās is demolished—it does not have the “constructive” aspect of muʿāraḍa, by which R’s qiyās is not only opposed, but supplanted with something epistemically superior.
- 207.
Ḥamīd Allāh ed., p. 1047; Hallaq, “Treatise,” pp. 224.
- 208.
This meta-logical concern is echoed in the works of al-Shīrāzī, al-Bājī, et al. They are not only concerned to list the numerous modes of tarjīḥ, but several of these find parallels among their modes of objection.
- 209.
Ḥamīd Allāh ed., pp. 1048–50; Hallaq, “Treatise,” pp. 224–8.
- 210.
First, in his naqḍ discussion (Ḥamīd Allāh ed., near the end of p. 1041); and second, in his qalb supplement (early on p. 1049).
- 211.
See Shīr.VII.3-4 and Bāj.IX.B.5-6 in the appendices. In al-Bājī’s mode #5, there is evidence he saw the terms as synonymous, or nearly so.
- 212.
“Islamic Disputation Theory,” pp. 113–15; mistakenly citing al-Juwaynī’s Burhān, p. 131, lines 10–12 (these numbers correspond to the Kāfiya, Maḥmūd ed.)
- 213.
Ibid., pp. 115–17.
- 214.
Kāfiya, Maḥmūd ed., p. 140, §235. In fact, the example was intended by al-Juwaynī to illustrate a specific type of manʿ which he terms “denial relevant to the source-case” (al-manʿ al-mukhtaṣṣ bi’l-aṣl).
- 215.
In fact, R is a Ḥanafī in al-Juwaynī’s example.
- 216.
Maʿūna, al-ʿUmayrīnī ed., p. 93.
- 217.
Minhāj, Turkī ed., p. 163, §349.
- 218.
K. al-Jadal, 1980 Cairo ed., 48
- 219.
“Islamic Disputation Theory,” pp. 115–17.
- 220.
al-Ḥāwī al-Kabīr, Maʿʿūd ed., vol. 7, pp. 401ff.
- 221.
Ḥassūn ed., vol. 4, pt. 8, pp. 73ff., §§11132ff. In the end, although his dialectical opponent does not appear to draw upon nikāḥ as an aṣl, al-Shāfiʿī’s multi-directional deconstruction of the “faskh-due-to-death” thesis is a sure model for later jurists.
- 222.
“Treatise,” p. 211.
- 223.
Ibid., n. 20.
- 224.
“Islamic Disputation Theory,” pp. 129–30.
- 225.
Minhāj, Turkī ed., p. 173, §381. Miller (op. cit.) renders: “Q’s accepting the ratio legis while excluding its application to the disputed point.”
- 226.
Kāfiya, Maḥmūd ed., p. 69, §166. Miller renders: “Q’s agreeing with R’s argument as to the juristic quality of the ratio legis, while excluding its application to the point of dispute” (“Islamic Disputation Theory,” p. 129).
- 227.
Maʿūna, al-ʿUmayrīnī ed., pp. 41–2.
- 228.
Ibid., pp. 57–9.
- 229.
Ibid., p. 85.
- 230.
Ibid., pp. 108–11.
- 231.
“Islamic Disputation Theory,” pp. 129–30.
- 232.
Maʿūna, al-ʿUmayrīnī ed., p. 110; Turkī ed., p. 248.
- 233.
“Islamic Disputation Theory,” p. 118.
- 234.
Kāfiya, Maḥmūd ed., p. 68, §162; Maḥmūd (n. 1) informs us that his lead manuscript reads “claim” (daʿwā) rather than “return/reversion” (ʿawd).
- 235.
Maʿūna, al-ʿUmayrīnī ed., p. 111.
- 236.
Minhāj, Turkī ed., 178, §391; NB: for al-Bājī this is the first mode of two, the second being fasād al-iʿtibār.
- 237.
Maʿūna, al-ʿUmayrīnī ed., p. 112.
- 238.
“Islamic Disputation Theory,” pp. 119. This is a fair description of “reversal” (qalb), but not, as we shall see, of “invalidity of occasioned status” (fasād al-waḍʿ). Again, Miller’s conclusion appears to hinge on supplanting “pig” with “dog.”
- 239.
Miller first links fasād al-waḍʿ to the “methodos kata peritropēn” of the Greek rhetoricians (“Islamic Disputation Theory,” p. 119; but in an earlier footnote [p. 38, n. 83] we learn that van Ess compares the “methodos kata peritropēn” to muʿāraḍa). He then concludes: “the usual technical term for this ancient method was qalb, reversal. It would appear that, at this stage, some of the technical terms of juristic dialectics had not yet been given their permanent technical meaning.”
- 240.
See, e.g., al-Bājī, Minhāj, Turkī ed., p. 14, §18; and pp. 174ff., §§385ff.; al-Baṣrī, K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., pp. 1040f., 1048ff.; and al-Juwaynī, al-Kāfiya, Maḥmūd ed., p. 68, §159.
- 241.
“Islamic Disputation Theory,” pp. 119–20.
- 242.
Maʿūna, al-ʿUmayrīnī ed., p. 113.
- 243.
Minhāj, Turkī ed., p. 179, §398.
- 244.
al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 114ff.; al-Bājī, Minhāj, Turkī ed., pp. 180ff., §400ff.
- 245.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1040; Hallaq, “Treatise,” p. 217.
- 246.
“Islamic Disputation Theory,” pp. 120–2.
- 247.
Kāfiya, Maḥmūd ed., p. 68, §163. Miller renders only part of the Arabic, as follows: “…when R claims a connection between a juristic qualification (ḥukm) and a certain thing (maʿnā) and this claim is not apparent” (ellipsis is his). I would suggest that maʿnā be interpreted in the sense which al-Shāfiʿī seems to have intended, something like: “(potentially-shared, potentially-efficient) intension-property”—or “common characteristic,” as Miller, with reference to Brunschvig, himself earlier renders maʿnā (“Islamic Disputation Theory,” p. 98, n. 25). If I am correct, al-Juwaynī’s definition and discussion correspond well with those of al-Shīrāzī and al-Bājī.
- 248.
Maʿūna, al-ʿUmayrīnī ed., p. 100.
- 249.
Importantly, al-Shīrāzī’s first mode of response (jawāb) against the first type of ʿadam al-ta’thīr includes an example debate wherein the difference between qiyās al-ʿilla and qiyās al-dalāla is laid bare (Maʿūna, al-ʿUmayrīnī ed., pp. 100–101). This is an excellent explanation of the key differences between qiyās categories, and it receives an even better explanation from Ibn ʿAqīl (K. al-Jadal, p. 56, §275). Most importantly, however, it provides indication of how distinctions between these categories of qiyās arose through the medium of dialectical debate. The key consideration between them, in fact, can only arise in a disputation, as it revolves around what a proponent-respondent claims. This is a prime example of uṣūl al-fiqh concepts and definitions refined in the forge of juridical dialectic.
- 250.
“Islamic Disputation Theory,” pp. 120–1.
- 251.
Al-Bājī notes this mode of objection is very similar to the preceding mode: kasr.
- 252.
Miller himself, continuing on the theme of al-Juwaynī’s caution in defining ʿadam al-ta’thīr, notes: “[al-Juwaynī] tells us more than once, the ʿilla of the law are unlike the ʿilla of the intellect for the latter are correlative while the former are not” (“Islamic Disputation Theory,” p. 121; citing Kāfiya, p. 9, lines 5ff.) This corresponds with the last section of al-Juwaynī’s definition, above: “And the required condition for efficiency is not the loss of the ruling due to loss of the occasioning factor (faqd al-ḥukm bi-faqd al-ʿilla); indeed, this is the condition of co-absence—and such is obliged only for rational-intellectual ‘causes’ (ʿilal al-ʿaql). Loss of efficiency for the ‘occasioning factors’ of God’s Law (ʿilal al-Sharʿ) might be for all the properties (awṣāf) of the occasioning factor, or for some of them.” As a whole, then, al-Juwaynī’s definition makes two clear distinctions regarding occasioning factors of God’s Law (ʿilal al-Sharʿ): (1) co-absence of ʿilla and ḥukm (al-ʿaks) is not a necessary condition of ta’thīr-efficiency; and (2) the charge of ʿadam al-ta’thīr may apply to the ʿilla as a whole, or to only some of its properties (awṣāf).
- 253.
Minhāj, Turkī ed., p. 195, §443. In his introductory chapter on definitions, al-Bājī also supplies a definition of al-ta’thīr, as follows: “the cessation (zawāl) of the ḥukm due to the cessation of the ʿilla in some locus (mawḍiʿ)” (p. 14, §18).
- 254.
“Islamic Disputation Theory,” p. 121.
- 255.
Although I would disagree with Miller’s assessment of al-Bājī as “also very wary about the value of this objection,” it is indeed plainly evident that he does not find ʿadam al-ta’thīr to be categorically mūjib li-fasād al-ʿilla. However, he is also sure to qualify this lack of fasād-conviction with “when another dalīl provides indication for [the ʿilla’s] validity.”
- 256.
“Islamic Disputation Theory,” p. 122.
- 257.
Maʿūna, al-ʿUmayrīnī ed., pp. 97–100.
- 258.
Maʿūna, al-ʿUmayrīnī ed., p. 99.
- 259.
We might also note that the Shāfiʿī respondent in al-Shīrāzī’s example mas’ala employs the formula a-lā tarā as a means of introducing his inferential proof of ta’thīr. This same function of defense is apparent in the formula’s proto-system use, as we shall see in Sect. 6.2.
- 260.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1040; Hallaq, “Treatise,” p. 217.
- 261.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1048; Hallaq, “Treatise,” pp. 224–5.
- 262.
Miller treats “reversal” (qalb) and “sharing the indication” (ishtirāk al-dalāla) as identical dialectical objections, and offers certain other observations which I consider problematic (“Islamic Disputation Theory,” pp. 122ff.) See my dissertation (pt. 1, pp. 166ff.) for a review and critique. The other subtypes and example problems of qalb which I will discuss in this section are those selected by Miller; my justifications for reinterpreting them may be found in the same section of my dissertation.
- 263.
Kāfiya, Maḥmūd ed., p. 233.
- 264.
Note this is not the same example employed by al-Shīrāzī to illustrate a type of fasād al-waḍʿ; conflation of the two may have led to some of Miller’s problematic observations.
- 265.
Maʿūna, Turkī ed., p. 260, §144.
- 266.
Miller renders this “the reversal of the intended juristic qualification.”
- 267.
“Islamic Disputation Theory,” pp. 126–7. Miller also records (pp. 125–6) al-Juwaynī’s discussion of qalb al-taswiya in his Kāfiya (239ff.), at some length. Al-Juwaynī notes variant terms (qalb al-tafriqa, qalb al-iʿtibār), and various contentions for and against its validity as an argument. In the end, he argues that qalb al-taswiya is indeed valid.
- 268.
“Islamic Disputation Theory,” pp. 89–90.
- 269.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1041; Hallaq, “Treatise,” p. 218.
- 270.
“Treatise,” p. 202.
- 271.
al-ʿUmayrīnī ed., pp. 104ff.; cf. Ibn ʿAqīl, K. al-Jadal, pp. 56ff. Al-Shīrāzī focuses his following discussion upon a set of possible replies to a charge of naqḍ—three for the Shāfiʿī so charged, and an additional three responses propounded by the Ḥanafīs.
- 272.
“Islamic Disputation Theory,” pp. 127ff., passim.
- 273.
“Islamic Disputation Theory,” p. 127.
- 274.
Kāfiya, Maḥmūd ed., p. 69, §165.
- 275.
Miller translates: “it is the denial that the juristic qualification has the alleged ratio legis.”
- 276.
Miller: “The existence of the ratio legis with the absence of its alleged juristic qualification”
- 277.
Reading (إجراء) rather than the (إبراء) of Maḥmūd’s edition.
- 278.
“Islamic Disputation Theory,” pp. 128 and n. 101.
- 279.
“Islamic Disputation Theory,” p. 128 and n. 103. He laments that al-Juwaynī is “somewhat careless in his use of these terms,” using sometimes one, sometimes the other.
- 280.
See the discussion on al-Juwaynī’s conception of muʿāraḍa below. This may explain why he appears to place munāqaḍa under the rubric of muʿāraḍa.
- 281.
“Treatise,” p. 202; citing from Muʿtamad, Ḥamīd Allāh ed., vol. 2, p. 824.
- 282.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., p. 1043; Hallaq, “Treatise,” p. 220.
- 283.
“Treatise,” 201–2. Cf. al-Shīrāzī (Maʿūna, al-ʿUmayrīnī ed., pp. 107–8), and Ibn ʿAqīl, K. al-Jadal, 65.
- 284.
“Islamic Disputation Theory,” p. 128.
- 285.
al-ʿUmayrīnī ed., pp. 104ff.
- 286.
Minhāj, Turkī ed., pp. 185ff., §§412ff.
- 287.
Maʿūna, al-ʿUmayrīnī ed., p. 107.
- 288.
Minhāj, Turkī ed., p. 191, §432. In his earlier chapter on definitions, al-Bājī defines kasr as “presence of a maʿnā-quality of the ʿilla, despite absence of the ḥukm” (p. 14, §18), thus tying it closely to naqḍ (“presence of the ʿilla despite absence of the ḥukm”).
- 289.
“Islamic Disputation Theory,” pp. 128–9.
- 290.
We may also note she is merely “unknown” (majhūla), and not “of unknown attribute” (majhūl al-ṣifa).
- 291.
“Islamic Disputation Theory,” p. 129.
- 292.
In the main, I will prefer “intension-property” and the hybrids “maʿnā-intension” and “maʿnā-quality”.
- 293.
Cf. al-Baṣrī’s definition, above.
- 294.
Kāfiya, bottom of p. 212.
- 295.
See Miller, “Islamic Disputation Theory,” p. 130. Observing that farq was considered a subcategory of muʿāraḍa, Miller treats it under a separate subheading before moving on to his section on muʿāraḍa. Translating farq as “distinction,” he provides al-Juwaynī’s definition from the Kāfiya (Maḥmūd ed., p. 69, §167), and follows up with a translated discussion from al-Bājī’s Minhāj (Turkī ed., p. 201, §456).
- 296.
Miller: “a type of counter-objection (muʿāraḍa) which contains an objection that the case at hand (farʿ) and the principal case (aṣl) differ with respect to the ratio legis of the juristic qualification.”
- 297.
Turkī ed., pp. 262ff., §146ff. The first half of this material is missing from al-ʿUmayrīnī’s ed.
- 298.
A definition of nuṭq may be found in Rafīq al-ʿAjam’s Mawsūʿat Muṣṭalaḥāt Uṣūl al-Fiqh ʿinda al-Muslimīn (vol. 2, pp. 1636f.; s.v. نطق): “It is the lafẓ-expression which is found in the Qur’ān or the Sunna, by which indicants are drawn (al-mustadall bihi) for the ḥukm of things; it is the most apparent meaning (ẓāhir) itself, and might be designated as ‘all the discourse (kalām) cited, as unambiguous text (naṣṣan), just as it was said (kamā qālahu) by he who spoke it (al-mutakallim bihi).’”
- 299.
Turkī ed., pp. 262–3, §149. It is in this section that al-ʿUmayrīnī’s edition resumes after a preceding lacuna.
- 300.
I have followed Turkī here; al-ʿUmayrīnī renders “one of the rulings of God’s Law” (ḥukm min aḥkām al-Sharʿ).
- 301.
Turkī ed., pp. 201ff., §456ff.
- 302.
“Islamic Disputation Theory,” p. 130; translating from al-Bājī, Minhāj, Turkī ed., p. 201, §456 (parentheses and brackets are Miller’s).
- 303.
Turkī ed., p. 203, §460.
- 304.
Miller notes, as regards al-Bājī’s first type of farq: “Q is in effect bringing a counter-claim with respect to both the test case and the principal one. The association with counter-objection [muʿāraḍa]… is transparent” (“Islamic Disputation Theory,” p. 132).
- 305.
“Islamic Disputation Theory,” p. 131; citing van Ess’s 1966 monograph on ʿAḍud al-Dīn al-Ījī.
- 306.
“Islamic Disputation Theory,” p. 133; citing Kāfiya, p. 69, §168; and Minhāj, Turkī ed., p. 14.
- 307.
Miller translates: “preventing one’s opponent (’s argument from prevailing) by making an equal and opposing claim; or it is matching the opponent’s claim to prove his thesis (with another opposed to it)” (parentheses are his).
- 308.
Miller: “Q’s opposing… R with a proof of equal weight or weightier.”
- 309.
“Islamic Disputation Theory,” p. 133; citing Kāfiya, p. 213, §343 and p. 418, §604.
- 310.
See editor’s intro, Kāfiya, pp. 136–7.
- 311.
Kāfiya, p. 418, §604.
- 312.
As noted, the “aṣl” was not collated with other manuscript witnesses; why one would invert the phrase is all the more unclear, unless it simply seemed odd the “Section on Norms of Counter-Indication” (Faṣl fī Aḥkām al-Muʿāraḍa) should open with mention of a different dialectical move: “Know that al-munāqaḍa is a type of al-muʿāraḍa….”
- 313.
This being the mas’alat al-naqḍ.
- 314.
This being R’s aṣl, which enjoys a “parallel” (naẓīr) relationship with Q’s mas’alat al-naqḍ, and thus should have the same ḥukm, but does not. Which is to say, Q has brought, as mas’alat al-naqḍ, the naẓīr of R’s aṣl, in which R’s purported ʿilla is present, but R’s ḥukm is not.
- 315.
In other words, the naẓīr of R’s aṣl which Q brings as his mas’alat al-naqḍ accomplishes two tasks at once. First, since its ḥukm contradicts that of R’s aṣl, but should not (as its naẓīr, with R’s ʿilla present in it), this means that R must either concede to inconsistency with regard to what his ʿilla occasions, or he must abandon his aṣl as not actually having that ʿilla in it—and this is naqḍ/munāqaḍa. Second, since the ʿilla claimed by R actually does exist in both the farʿ under consideration and Q’s mas’alat al-naqḍ, the latter also serves as the aṣl for Q’s counter-qiyās, supplanting R’s aṣl and transferring the opposite of R’s ḥukm to the farʿ—and this is muʿāraḍa.
- 316.
Kāfiya, op. cit. Note that all of Q’s activities are more general forms of counter-indication, and none of them need rest on R’s inconsistency or self-contradiction. Complaining of al-Juwaynī’s inconsistency, Miller has also cited Kāfiya, p. 213, §343, where al-Juwaynī purportedly treats muʿāraḍa “as another entirely different species of objection” from munāqaḍa. The cited passage, however, occurs in the context of a disputant incorrectly claiming munāqaḍa where in fact some other type of muʿāraḍa has occurred. Al-Juwaynī says: “And there belongs to muʿāraḍa another degree (daraja ukhrā) besides what he claims, and its place (maḥalluhā) is not that of al-munāqaḍa….” This is fully consistent with al-Juwaynī’s conception of munāqaḍāt as a subset of muʿāraḍāt; every munāqaḍa is a muʿāraḍa, but not every muʿāraḍa is a munāqaḍa.
- 317.
Note this latter path constitutes a counter-qawl bi-mūjib al-ʿilla, as R confirms the compelling agency of Q’s occasioning factor along with his own.
- 318.
K. al-Qiyās al-Sharʿī, Ḥamīd Allāh ed., pp. 1044–5; Hallaq, “Treatise,” pp. 222–3.
- 319.
- 320.
“Islamic Disputation Theory,” p. 134.
- 321.
Kāfiya, p. 70, §173. Miller’s translation has a different cast to it: “It is rejecting (dafʿ) R’s discussion by showing something which brings about a difference (faṣl) between what R says and what R was entrusted to defend” (“Islamic Disputation Theory,” p. 134). In such a light, ilzām would indeed appear to be a dialectical objection—specifically, that of ignoratio elenchi, or the charge that an opponent has indeed proven something, but not his original claim as to the issue at stake. If my interpretation above is correct, however, it is questionable that al-Juwaynī intended this by ilzām. Moreover, Miller provides a later interpretation of ilzām which supports my interpretation, when translating a passage from al-Samarqandī’s Qusṭās: “The debate continues until R is silenced (ifhām) or Q is forced to accept his argument (ilzām)” (ibid., p. 211).
- 322.
Al-Bājī is a slight exception, with, as we will see, a few brief paragraphs on the prescribed comportment of the disputant.
- 323.
See also Fallūsī, al-Jadal ʿinda al-Uṣūliyyīn, pp. 254–67, where he delivers a full exposition on the conclusion of debate, citing a number of sources (al-Juwaynī and Ibn ʿAqīl among them).
- 324.
“Islamic Disputation Theory,” p. 139.
- 325.
“Islamic Disputation Theory,” pp. 140. Note the following: (1) these are among the primary objectives of dialectic in general; (2) the primary functions of the ubiquitous formulae a-ra’ayta and a-lā tarā in our subject-text are to push the opponent to concede an untenable consequence (contradiction, absurdity, etc.); and (3) these formulae are more ancient even than Abū Ḥanīfa, who makes plentiful use of them.
- 326.
al-Faqīh wa’l-Mutafaqqih, ʿAzzāzī ed., vol. 2, p. 111.
- 327.
Kāfiya, 551ff., §§820ff.; at 553, line 15.
- 328.
Taqrīb, ʿAbbās ed., p. 197.
- 329.
K. al-Jadal, p. 72, §335; and Taqrīb, ʿAbbās ed., p. 188.
- 330.
al-Faqīh wa’l-Mutafaqqih, ʿAzzāzī ed., vol. 2, p. 111.
- 331.
From K. al-Jadal, pp. 71–2, §§331 and 336.
- 332.
“Islamic Disputation Theory,” pp. 140–1.
- 333.
Ibid., p. 141. Intriguingly, he claims: “al-Juwainī’s account is also influenced by Aristotle. Thus, he gives four of Aristotle’s five criticisms of an argument….” Although I agree that elements of Aristotle’s dialectic are present, I have been unable to locate the “five criticisms” in al-Juwaynī. See my dissertation (“Dialectical Forge,” pt. 1, pp. 192–4) for a critique.
- 334.
Maḥmūd ed., pp. 556–7.
- 335.
Following his definition of inqiṭāʿ, al-Juwaynī notes that “every terminating cause (inqiṭāʿ) is an inability (ʿajz), but not every inability is a cause for termination” (ibid., 556).
- 336.
Maḥmūd records that two words are obliterated or illegible (where I have placed [?] above), but I cannot make sense of his reconstruction: كيفية [ما يرد] عليه من وجوه الإلزامات (p. 557, n. 1_1).
- 337.
To say that al-Juwaynī is “influenced by Aristotle” does not contribute much in light of the far more numerous differences between his method and that of the Aristotelian tradition. Even less so when one considers that the greater Islamic corpus of argumentation epistemes (to which al-Juwaynī’s Kāfiya was a relatively late contribution) had long been woven with innumerable and untraceable threads. Some of these threads were doubtless Aristotelian in the fullest sense of the word, straight from the Organon, and its ancient and late antique commentaries, through a variety of languages, and across several eras and far-flung teaching centers. But other threads were parallels of non-Aristotelian inspiration, both Islamic and pre-Islamic; and some of these latter were so ancient as to have potentially inspired the flowering of “Hellenic” philosophy itself (see, among other works, Walter Burkert’s Orientalizing Revolution: Near Eastern Influence on Greek Culture in the Early Archaic Age). Moreover, there were doubtless threads whose distant origins were Aristotelian, but whose long periods of development in different regions, and according to the dictates of different intellectual projects, transformed them into something unique unto themselves.
- 338.
Turkī ed., pp. 9–10, §§8–13. See Fallūsī, al-Jadal ʿinda al-Uṣūliyyīn, pp. 278–321, for a full exposition on this topic as drawn from texts by al-Bājī, al-Juwaynī, Ibn ʿAqīl, and others.
- 339.
Miller dedicates a short section to this topic as well (“Islamic Disputation Theory,” pp. 141–2). Among other things, he maintains the take over paradigm: “These basic rules of conduct during the debate were taken over by the jurists from theological jadal” (ibid., 141); briefly mentions that Ibn Ḥazm discusses the topic (citing the Taqrīb, ʿAbbās ed., p. 196); and provides an informative translation of al-Juwaynī’s review of the responsibilities of questioner and respondent (p. 142; citing Kāfiya, p. 558, line -3 ff.)
- 340.
Needless to say, I have never encountered references to Aristotle or syllogistic figures and moods in the Umm compendium or lens-texts, either.
- 341.
The significance of this work for the developmental histories of fifth/eleventh century philosophical and/or juridical jadal theory is self-evident: the Taqrīb represents an early system for applying Aristotelian and Stoic logic to legal reasoning. Its author, the famed Andalusian Ẓāhirī Ibn Ḥazm (d.456/1063), not only predeceased al-Shīrāzī by two decades, but was a prominent dialectical opponent of al-Bājī (see Turkī, Polémiques entre Ibn Ḥazm et Bāǧī).
- 342.
Taqrīb, Mazīdī ed., p. 115.
- 343.
Taqrīb, Mazīdī ed., p. 128; reading واجب instead of واجد.
- 344.
See Hallaq, History, pp. 137ff., for an exposition on al-Ghazālī’s contribution; Hallaq notes that Ibn Ḥazm made the “first step” towards bring formal logic into legal theory (p. 137).
- 345.
Again, Ibn Ḥazm’s Taqrīb might provide a standard of measure. Even so, our lens-texts do not belong to the sort of intellectual project in which he engaged in the Taqrīb. And if they do not bear the marks of consciously syllogistic argument engineering, they nevertheless bear the marks of other systems: prior jadal teachings, some of which are transmitted in a language and style older even than al-Shāfiʿī, and used by him.
- 346.
“Islamic Disputation Theory,” pp. iii.
- 347.
Again, see Hallaq, History, pp. 39–40, and 132ff.
- 348.
An. Pr. I.23, 40b17ff.; trans. Tredennick.
- 349.
An. Pr. I.23, 41a20ff.; trans. Tredennick.
- 350.
A brief disclaimer: I do not suggest that Aristotle’s works, or any other non-Arabic compositions, had to await translation into Arabic before they could be studied or learned by early Muslim scholars. Too often this has been assumed in modern scholarship, and often by scholars who have themselves mastered difficult foreign tongues for the sake of their own studies. Early Muslim scholars were more than capable of doing the same, and may have been privy to Aristotelian teachings—regardless of whether or not they commanded Greek or Syriac—via intermediary teachers and peers. That enormous and lengthy project known as the Translation Movement was without any doubt a seminal event in early Islamic scholarship, but access to the works translated did not hinge upon their translation; a variety of conduits for the teaching and study of these works preceded the Translation Movement. My objective in noting the early Arabic translations of certain terms and concepts is merely to highlight parallels or divergences in the Arabic formulations of our lens-texts.
- 351.
Ṭawīl ed., p. 405.
- 352.
Badawī (Manṭiq Arisṭū, vol. 1, [Introduction], p. 16) believes this cannot be Theodore Abū Qurra, Bishop of Ḥarrān [d.210/820; a contemporary of al-Shāfiʿī], because Ḥunayn b. Isḥāq would only have been 11 years old at the time the Fihrist tells us this Theodorus showed his translation to him and his companions. There is the possibility that this Theodore was the Bishop of Karkh, in Baghdād, but Badawī prefers to leave the question open.
- 353.
Ibid., vol. 1, p. 204, passim.
- 354.
Ibid., p. 207, passim.
- 355.
Ibid.
- 356.
Vocabulaires Comparés, p. 10, s.v. “Ḫulf.”
- 357.
Prior Analytics, Loeb ed., p. 354, note b; citing Alexander 324. 19. For “proving results in the figures [ad/per impossibile],” see: An. Pr. I.5, 27a14, 28a7; I.6, 28a23, 29, 28b14, 17; I.7, 29a35; etc. (more references are in the Loeb ed. index, s.v. “Reduction; ad impossibile”); and for comparison of per impossibile and other methods, see An. Pr. II.11–14.
- 358.
An. Pr. II.26, 69a37-69b1; trans. Tredennick.
- 359.
In fact, instantia as objection appears most suited to dismantling an inductive argument, and seems to have little or nothing at all to do with ʿilla s (whether “causes” or “occasioning factors”).
- 360.
Badawī, Manṭiq Arisṭū, vol. 1, pp. 310ff.
- 361.
Ibid., p. 323.
- 362.
Smith, Topics I and VIII, p. xxxiv.
- 363.
Ibid., pp. xxx-xxxiii.
- 364.
Ibid., pp. xxiv-xxviii. In addition to Smith, see Eleonore Stump’s Dialectic and its Place (especially at pp. 11–30, “Dialectic and Aristotle’s Topics”) for an excellent introduction.
- 365.
Topics I and VIII, p. xxvii.
- 366.
Ibid., p. xxviii.
- 367.
Top. VIII.1, 155b3ff.; trans. Forster.
- 368.
Topics I and VIII, pp. xiv-xv.
- 369.
Top. II.7, 112b27ff.; trans. Forster.
- 370.
Top. II.7, 113a20–24; trans. Forster.
- 371.
Top. II.11, 115a25; trans. Forster.
- 372.
Topics I and VIII, p. xxxiii.
- 373.
See, e.g., al-Shīrāzī, Maʿūna, al-ʿUmayrīnī ed., pp. 40–1; 42; 57; 58–9; 88–9.
- 374.
Topics I and VIII, pp. 9–10. All parentheses, etc., belong to the translation.
- 375.
Understanding Aristotle’s dialectical premises as belonging to an endoxa set becomes particularly important for parallel conceptions of ijmāʿ. Some have seen conflict or inconsistent usage of ijmāʿ al-Umma over and against ijmāʿ al-ʿulamā’. But an endoxa set schema would show that ijmāʿ al-Umma includes ijmāʿ al-ʿulamā’, while the reverse need not necessarily be the case.
- 376.
Topics I and VIII, p. xv.
- 377.
This is precisely the spirit in which Abū Yūsuf compiled the K. Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā; and it is the same spirit in which al-Shāfiʿī expanded upon that work.
- 378.
“Islamic Disputation Theory,” p. 57.
- 379.
Topics I and VIII, pp. xxxiv, xxxv.
- 380.
Aristotle on False Reasoning, p. 4; the table has been reordered as an outline from Schreiber’s diagram.
- 381.
The sources for all may be found in the list of references at the end of this chapter. Again, my intention with the Arabic translations is merely to highlight any parallels of terminology between the efforts of the translators and the technical jargon of our jadal theorists. Two of the translators edited by Badawī in his Manṭiq Arisṭū belong to the fourth/tenth century, i.e., the century in which the sciences of jadal and uṣūl al-fiqh were first systematized in literary treatises. They are: Yaḥyā b. ʿAdī (d.363/974); and ʿĪsā b. Isḥāḳ b. Zurʿa (d.398/1008). Badawī’s third source is an “old transmission” (naql qadīm) attributed to al-Nāʿimī (d.?) For more on these translators, see Badawī’s introduction to the Manṭiq Arisṭū.
- 382.
There is much more we might learn from a thorough, move-by-move, comparative analysis between the Sophistical Elenchi and our jadal-theory texts. What follows is merely a first foray.
- 383.
False Reasoning, p. 192, n. 13; see also pp. 87–8. For the description of ignoratio elenchi as an independent fallacy, see: Soph. El. 4, 166b24; 5, 167a21ff. As for its description as a genus of fallacies, see: Soph. El. 6, 168a18ff.; and Schreiber, False Reasoning, 87–93. And as for its resolution as an independent fallacy, see: Soph. El. 26.
- 384.
“Islamic Disputation Theory,” p. 141.
- 385.
Description: Soph. El. 4, 165b26, 30ff.; 6, 168a25; 7, 169a23ff.; and Schreiber, False Reasoning, pp. 21–5. Resolution, with examples: Soph. El. 17; 19, 177a10ff.; 22, 178a24ff.; 23, 179a17; and Schreiber, False Reasoning, pp. 31–6.
- 386.
Description: Soph. El. 4, 165b26, 166a7ff.; and Schreiber, False Reasoning, pp. 25–31. Resolution: Soph. El. 17; 19, 177a16ff.; 23, 179a20; and Schreiber, False Reasoning, pp. 31–6.
- 387.
Description: Soph. El. 4, 165b26, 166b10ff.; 7, 169a37ff.; and Schreiber, False Reasoning, pp. 37–54. As a category mistake: Soph. El. 6, 168a26; 7, 169a35; 22, 178a6ff., 178b24ff.; and Schreiber, False Reasoning, pp. 38–44. As other than a category mistake: Schreiber, False Reasoning, pp. 44–48. Form of the Expression and solecism: Soph. El. 3, 165b15; 14, 173b17ff.; and Schreiber, False Reasoning, pp. 48–51. As a linguistic fallacy of double-meaning: Soph. El. 6, 168a24ff.; Schreiber, False Reasoning, pp. 51–4.
- 388.
Description: Soph. El. 4, 165b27, 166b1ff.; 6, 168a27; 7, 169a29; and Schreiber, False Reasoning, pp. 58–60. Resolution: Soph. El. 20, 177b3; 21; 23, 179a15.
- 389.
Description: Soph. El. 4, 165b27, 166a23ff.; and Schreiber, False Reasoning, pp. 60–76. Resolution: Soph. El. 22.
- 390.
Description: Soph. El. 4, 165b27, 166a34ff.; and Schreiber, False Reasoning, pp. 60–76. Resolution: Soph. El. 22.
- 391.
Description: Soph. El. 4, 166b25; 5, 167a37ff.; 6, 168b23ff.; 7, 169b13; Schreiber, False Reasoning, pp. 98–105. Resolution: Soph. El. 27; Schreiber, False Reasoning, pp. 106.
- 392.
Shīr.VII.14.3; and al-Bājī: “That he says: I make the maʿlūl an ʿilla, and the ʿilla a maʿlūla” (Minhāj, Turkī ed., pp. 177, §389). Al-Bājī relates ikhtilāf regarding this subspecies of iʿtirāḍ, and then rejects it.
- 393.
See the analysis for §284 in Chap. 5.
- 394.
“Treatise,” p. 216, n. 31. Elsewhere, Hallaq has noted that Orientalist Snouck Hurgronje assessed the entire institution of ijmāʿ as a singular petitio principii (“Authoritativeness of Sunni Consensus,” p. 429). Building upon an earlier attempt by George Hourani, Hallaq shows in this article, among many other things, how jurists such as al-Ghazālī and al-Āmidī, among others, avoided what was termed dawr: “circularity.”
- 395.
Ḥamīd Allāh ed., vol. 2, pp. 476–7. See Bernand’s entry on ijmāʿ in the EI 2, to which I owe this reference. Among other things, al-Ghazālī’s argument in his Mustaṣfā is also explained therein.
- 396.
Description: Soph. El. 4, 166b26; 5, 167b21ff.; 7, 169b14; Schreiber, False Reasoning, pp. 107–12.
- 397.
Bāj.IX.B.3.
- 398.
Kāfiya, Maḥmūd ed., p. 68, §163. Cf. the discussion of ʿadam al-ta’thīr, above.
- 399.
Trans. Forster.
- 400.
Description: Soph. El. 4, 166b22; 5, 166b28ff.; 6, 168a34ff., 168b27ff.; 7, 169b3ff.; Schreiber, False Reasoning, pp. 113–16, 126–30. Resolution: Soph. El. 24; Schreiber, False Reasoning, pp. 114–16. Note that Schreiber considers “accident” and “consequent” to be, in fact, “one single fallacy with one single resolution” (p. 113). He also points out that past approaches to the analysis of this fallacy via “appeal to linguistic ambiguity” challenge Aristotle’s typology (whereby “accident” and “consequent” are fallacy-types “outside of language”). As for the formal analytical approach, with specific regard to the fallacy of consequent: “It was rechristened the ‘fallacy of Affirming the Consequent’ by John Neville Keynes in the nineteenth century and continues to thrive under that label in most introductions to modern propositional logic” (Schreiber, op. cit.)
- 401.
Trans. Forster.
- 402.
Such being Bāj.IX.B.12.2.1-2.
- 403.
Description: Soph. El. 4, 166b25; 5, 167b1ff.; 6, 168b28ff.; 7, 169b7ff.; Schreiber, False Reasoning, pp. 130–9. Resolution: Soph. El. 28.
- 404.
Trans. Forster.
- 405.
“which depend on whether a statement is made in a limited sense or absolutely” (Soph. El. 6, 168b11; trans. Forster). Description: Soph. El. 4, 166b23; 5, 166b37ff; 6, 168b11ff.; 7, 169b11ff.; Schreiber, False Reasoning, pp. 141–4, 145–51. Resolution: Soph. El. 25; Schreiber, False Reasoning, p. 144. False Resolutions: Schreiber, False Reasoning, p. 144.
- 406.
Schreiber, False Reasoning, p. 141.
- 407.
Sophistical Refutations, Loeb ed., margin of p. 85.
- 408.
Minhāj, Turkī ed., pp. 29–30, §55.
- 409.
Soph. El. 5, 166b27; trans. Forster. Description: Soph. El. 4, 166b27; 5, 167b38ff.; 6, 169a6ff.; Schreiber, False Reasoning, pp. 153–9, 161–6. With disjunctive premises: Schreiber, False Reasoning, pp. 154, 155–6; and with conjunctive premises: False Reasoning, pp. 154, 156–9. Resolution: Soph. El. 17, 175b39ff.; 30, 181a36ff.; Schreiber, False Reasoning, pp. 159–60.
- 410.
False Reasoning, p. 153.
- 411.
See Pirie, How to Win Every Argument, p. 29: “The complex question (plurium interrogationum).”
- 412.
Soph. El., Loeb ed., margin of p.85 (Forster’s heading).
- 413.
Soph. El. 15, 174b19ff. (trans. Forster; brackets are mine).
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Young, W.E. (2017). The Full-System Jadal Theory of the Lens-Texts. In: The Dialectical Forge. Logic, Argumentation & Reasoning, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-319-25522-4_4
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